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6.4 Positano Amend Housing Agmt
ti~ ~_ ~ ~;~ ~~/~ CITY CLERK File # ^^lp ~~-~~ ~3o-SD -~L~~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: November 4, 2008 SUBJECT: Positano Affordable Housing Agreement and Anderson Development Agreement -Amendment to the Affordable Housing Agreement for the First Phase of Positano and a Subsequent Affordable Housing Agreement to address the Inclusionary Zoning Obligation for the remainder of the Positano Development, and a Development Agreement for the 108-unit apartment project on the northern 7-acres of the Anderson property. Report Prepared by Jeff Baker, Senior Planner ATTACHMENTS: 1) Resolution approving Amendment No.2 to the Affordable Housing Agreement for the First Phase of Positano to include a total of 4161ots and modify the unit mix and income affordability level of the Inclusionary units within the First Phase, with the amended Affordable Housing Agreement attached as Exhibit A. 2) Resolution approving a Subsequent Phase Affordable Housing Agreement between the City of Dublin and Dublin RE Investors, LLC for the portion of Positano that is outside the First Phase Affordable Housing Agreement, with the Affordable Housing Agreement attached as Exhibit A. 3) Ordinance approving a Development Agreement between the City of Dublin and Dublin RE Investors LLC for the northern 7-acres of the Anderson property, with the Development Agreement included as Exhibit A. 4) City Council Staff Report dated October 18, 2005, with attachments. 5) City Council Meeting Minutes dated October 18, 2005. 6) City Council Meeting Minutes dated March 4, 2008. 7) Approved Affordable Housing Agreement for the First Phase of Positano. 8) Amendment No. 1 to the Affordable Housing Agreement for the First Phase of Positano. 9) Planning Commission Resolution recommending that the City Council adopt an Ordinance approving a Development Agreement between the City of Dublin and Dublin RE Investors LLC for the northern 7-acres of the Anderson property. 10) Planning Commission draft Meeting Minutes dated October 14, 2008 COPY TO: Jeff Lawrence, Braddock & Logan File PA OS-038 Page 1 of 10 G:\PA#\2005\OS-038 B&L Stage 2 Fallon VillageWffordable Housing Agreement\CC 11.04.08\CCSR Subsequent AHA 11.4.08.doc ITEM NO. ro.y' RECOMMENDATION: 1) Receive Staff presentation; 2) Open the public hearing; 3) Take testimony from the Applicant and the public; 4) Close the public hearing and deliberate; and 5) Take the following actions: a. Adopt the Resolution approving Amendment No. 2 to the Affordable Housing Agreement for the First Phase of Positano to include a total of 416 lots and modify the unit mix and income affordability level of the Inclusionary units within the First Phase (Attachment 1); b. Adopt the Resolution approving a Subsequent Phase Affordable Housing Agreement between the City of Dublin and Dublin RE Investors, LLC for the portion of Positano that is outside the First Phase Affordable Housing Agreement (Attachment 2); and c. Waive the first reading and introduce the Ordinance approving a Development Agreement between the City of Dublin and Dublin RE Investors LLC for the northern 7-acres of the Anderson property (Attachment 3). FINANCIAL STATEMENT: The costs to administer these Affordable Housing Agreements are included in the administration fees that are charged with the sale of each affordable unit and the annual monitoring of rental projects. DESCRIPTION: Background Braddock & Logan's Positano development is a residential development consisting of 1,043 single-family homes on a 488-acre project site. The project site is located within the northern portion of the larger Fallon Village project area, east of Fallon Road and the Dublin Ranch development, west and southwest of the City Limits boundary with Alameda County and Doolan Canyon (see Map 1 to the right). Braddock & Logan has received approval of Site Development Review (SDR) to construct the first phase of the development consisting of 247 homes. Construction of the homes in the first phase is currently underway. Map 1: Positano Vicinity Map The Anderson property is generally located north of Interstate 580 and east of Croak Road near the eastern City limits in Fallon Village (see Map 2 to the right). Braddock & Logan has received approval of an SDR to construct a 108-unit apartment project consisting of 82 affordable units (including 78 units to satisfy a portion of the Inclusionary Zoning obligation for Positano and 4 units to satisfy the Inclusionary Zoning obligation for the Anderson property), 25 market rate units, and 1 manager's unit, on the northern 7-acres of the Anderson property. Map 2: Anderson Vicinity Map Page 2 of 10 Affordable Housing Agreement Inclusionary Zoning Regulations The Inclusionary Zoning Regulations of the City of Dublin Zoning Ordinance (Chapter 8.68) contains affordable housing requirements for all new developments of 20 or more units. Residential developments consisting of 20 or more units are required to provide 12.5% of the units as affordable to households with very-low, low, and moderate income levels as determined by the California Department of Housing and Community Development for Alameda County. These affordable units are required to be constructed on- site and integrated with the market rate units. The affordable units are required to be evenly distributed throughout the project, include a range of bedrooms consistent with the overall project, and be indistinguishable in exterior appearance from the market rate units. The Inclusionary Zoning Regulations also provide the City Council with the ability to make exceptions to the regulations contained in the Inclusionary Zoning Ordinance, including alternative methods of compliance with the Inclusionary Zoning Regulations such as the development of off-site affordable units. Affordable Housing Proposal In accordance with the Inclusionary Zoning Regulations, the Positano development has a requirement to provide 130 affordable units. Table 1: Positano Inclusionary Zoning Requirements Total Units Inclusionary Re uirement Inclusionary Units 1,043 12.5% 130 Braddock & Logan prepared an affordable housing proposal to address the affordable obligation for the Positano development which was reviewed by the City Council on October 18, 2005 (Attachment 4). The City Council reviewed the proposal and directed Staff to work with Braddock & Logan to refine the proposal (Attachment 5 and 6) to include: 1) rear yard landscaping, energy efficient measures, and green building principles into affordable units; 2) study feasibility of integrating market rate units into an off-site affordable apartment project; and 3) address the timing and security necessary to ensure completion of the off-site apartments. Since October 2005, the affordable housing proposal has been refined and those refinements were reviewed by the City Council on June 5, 2007, March 4, 2008, and June 17, 2008. The refined affordable housing proposal continues to include a combination of on-site integrated units, secondary units, off-site apartments on the Anderson property, and a $1,000,000 Community Benefit Payment. Please refer to Table 2 for a summary of the existing affordable housing proposal. Table 2: Affordable Housin Pro osa l (June 17, 2008 Unit Type Ownership /R t l Income Level Size of Units Affordability en a period 22 Single-family 50% moderate (12 units) detached Units For sale 20% low (6 units) 4 bedroom units In perpetuity 30% very low (4 units) 50% moderate (12 units) 30 Secondary Units Rental 20% low (6 units) 1 bedroom/ ~ Perpetuity 30% very low (12 units) 1 bath 50% moderate (39 units) 78 Apartments* Rental 20% low (I6 units) 2 bedroom/ In perpetuity 30% very low (23 units) 2 bath 130 Total Units * Plus 4 units to satisfy the Inclusionary Zoning requirements for the Anderson property. Page 3 of 10 Staff and Braddock & Logan have been working to prepare an Affordable Housing Agreement (AHA) for the entire 1,043 unit project since the October 18, 2005 City Council meeting. An AHA was prepared for the first phase of Positano (First Phase AHA) consisting of 247 units, which allowed the developer to begin construction of those units. The First Phase AHA was approved by the City Council on June 5, 2007, and amended on June 17, 2008 to eliminate 4 integrated units and add 4 secondary units (Attachments 7 and 8). The Developer is required to enter into a subsequent AHA to address the Inclusionary Zoning obligation for the Subsequent Phase and Final Phase of Positano (Subsequent and Final Phase AHA). Please refer to Map 3 (below) for the location of the First Phase, Subsequent Phase and Final Phase of the project. ___ ---~ ~' - P~ amass ~ ^. gat F¢st Fuse ,_d ~ sat, Fci:,no Par' = of Fine P2se {1~.. , tSS 4QIa't Fu31 F^a=e ..at<. ~ _ __~ ,I ~• ~ `1. ''''' 1 ~ ~, ., ,~ %,_ i ~ - Map 3: Phases of Positano Staff and Braddock & Logan have worked together to prepare the subsequent AHA. During this time, Braddock & Logan further refined their affordable housing proposal for Positano, which impacts the First Phase AHA. Therefore, Staff has also prepared an amendment to the First Phase AHA (Please refer to section I.A of this Staff Report below). The proposed amendment to the First Phase AHA and the proposed Subsequent and Final Phase AHA, are included in Attachments 1 and 2 of this Staff Report respectively, and are further discussed below. Development Agreement The Eastern Dublin Specific Plan (EDSP) requires .all Applicants for development within the Specific Plan area to enter into a Development Agreement. Additionally, Condition 98 of the approved Site Development Review for the 108-unit apartment project on the Anderson property further requires the Applicant to enter into a Development Agreement prior to issuance of a Grading Permit or Building Permit for the project (Resolution 08-04). Therefore, Staff has prepared a Development Agreement for the Anderson property, which is included in Attachment 3 of this Staff Report and is further discussed below. Current Request Braddock & Logan is currently requesting approval of the following: 1. Amendment to the AHA for the First Phase of Positano as follows: ^ Increase the First Phase to include 416 lots (Parts I & II of First Phase -see Map 3 above) ^ Modify the unit mix and income affordability level of the on-site Inclusionary Units Page 4 of 10 2. Subsequent AHA to address the inclusionary Zoning obligation for the Subsequent and Final Phases of Positano (totaling 627 lots); and 3. Development Agreement for the residential project on the northern 7-acres of the Anderson property. ANALYSIS: I. Affordable Housing Agreement (Overall Positano Project) Braddock & Logan has further refined the overall affordable housing proposal for Positano since it was presented to the City Council. The requested changes to the affordable housing proposal modify the unit mix and the income affordability level of the single-family detached units and the secondary units. Income Affordability Level Braddock & Logan's refined affordable housing proposal continues to include a total of 130 affordable units including a combination of on-site integrated units, secondary units, off-site apartments on the Anderson property, and a $1,000,000 Community Benefit Payment. However, the number of on-site integrated units has been reduced and the number of secondary units has been increased. The income level (affordability) of these units has also been revised to eliminate on-site integrated units affordable to very-low income households and eliminate the secondary units affordable to moderate income households. Please refer to Table 3 (below) for the proposed refinements. The result of these refinements is to "deepen" the affordability of the project, by adding 9 additional very low-income units, and correspondingly eliminating 9 moderate income units. Table 3: Refinements to Affordable Housinu Prnnncal A roved Pro osal Current Pro oral Unit T e Income Level Unit T e Income Level 22 Single-family 500% moderate (12 units) 20 /o low (6 units) 18 Single-family 83% moderate (15 units) detached Units 30% very low (4 units) detached Units 17% low (3 units) 30 Secondary 500% moderate (12 units) 34 Secondary 26% low (9 units) Units 200% low (6 units) 30 /o very low (12 units) Units 74% very low (25 units) 78 Off-Site Units 50% moderate (39 units) (Anderson) 20% low (16 units) No change No change 30% very low (23 units) The Applicant has indicated that the costs of homeownership including Homeowners Association (HOA) dues, Geologic Hazard Abatement District (GRAD) fees, Landscape Maintenance District fees, and overall homeowner expenses make it infeasible to market the single-family detached homes to very-low income households. The Applicant estimates that these fees will total approximately $175 per month. Along with the restricted sales price for very-low income households will come a number of expenses, including landscape maintenance, heating and cooling and general long-term maintenance of the home. The additional costs of homeownership may exceed what avery-low income household maybe able to pay. Therefore, Staff supports the Applicant's proposal to provide secondary units for very- low income households. This is also consistent with the AHA Amendment that was approved by the City Council on June 17, 2008 which eliminated 4single-family detached homes that were affordable to very-low income households and added 4 additional secondary units. Table 4 (below) provides a summary of the Applicant's current overall affordable housing proposal to address the Inclusionary Zoning obligation for the entire Positano project. Page 5 of 10 Table 4: Refined Affordable Hnncinu Prnnncal fnr Pncitann ((~'urran+ prnr~ne.~ll Unit Type Ownership Income Level Size of Units ---i Affordability /Rental period 18Single-family detached Units For sale 830% moderate (15 units) 17 /o low (3 units) 4 bedroom units In perpetuity 34 Secondary Units Rental 260% low (9 units) 1 bedroom/ ~ perpetuity 74 /o very low (25 units) 1 bath 50% moderate (39 units) 78 Apartments* Rental 20% low (16 units) 2 bedroom/ ~ Perpetuity 30% very low (23 units) 2 bath 130 Total Units * Plus 4 units to satisfy the Inclusionary Zoning requirements for the Anderson property. The proposed refinements to the affordable housing proposal have been incorporated into the proposed amendment to the First Phase AHA and the proposed Subsequent and Final Phase AHA as discussed below. A. First Phase Affordable Housing Agreement Amendment The amended First Phase AHA includes a total of 416 lots. These 416 lots generate an Inclusionary Zoning Requirement to provide 52 affordable units. Table 5: First Phase Inclusionary Requirement Total Units Inclusionary Re uirement Inclusionary Units 416 12.5% 52 Braddock & Logan's affordable housing proposal includes 52 on-site affordable units, which consists of integrated units and granny flats. These 52 affordable units would be constructed within the First Phase of Positano. Therefore, the affordable housing in First Phase would include a combination of 18 single-family detached units, 34 secondary units, and payment of a prorated share of the $1,000,000 Community Benefit Payment on a per unit basis (i.e. $958.77 per unit) prior to issuance of each building permit in Positano (for a total of $398,848 for 416 units). Please refer to Table 6 below for the unit mix and income affordability level of on-site units that will be constructed within the First Phase. As indicated above, the proposed unit mix "deepens" the affordability of the Inclusionary units by adding 9 additional very-low income units, and correspondingly eliminating 9 moderate income units. Table 6: On-Site inclnsionarv iTnitc - First PhacP Unit Type Ownership Income Level Size of Units Affordability /Rental period 18 Single-family detached Units For sale 830% moderate (15 units) 17 /° low (3 units) 4 bedroom units In perpetuity 34 Secondary Units Rental 26% low (9 units) 1 bedroom/ ~ e etui P ~ ~ 74% very low (25 units) 1 bath 52 On-site Units Location of Inclusionary Units Braddock & Logan has received approval of an SDR to construct the first 247 units in the First Phase of Positano. These units are located in Part 1 of the First Phase (Please refer to Map 3 on page 4). The first 247 units generate a requirement to provide 31 affordable units (247x12.5%=31 units). The amended First Phase AHA identifies the location of 26 affordable units within Part 1 Page 6 of 10 of the First Phase and obligates the Developer to construct 5 additional affordable units, or make a refundable deposit of in-lieu fees to be returned when the five units are constructed. Braddock & Logan has not yet received approval of an SDR for the lots in Part 2 of the First Phase (Map 3 on Page 4). Therefore, the Developer is not able to identify which lots will have affordable units at this time. Therefore, the First Phase AHA allows the Community Development Director to approve the location of the inclusionary units in Part 2 of the First Phase at a later date. Rear Yard Landscaping The City Council directed Staff to work with Braddock & Logan to provide rear yard landscaping for the affordable single-family detached units. The First Phase AHA (Attachment 7 -AHA Section 6.C, Page 5) requires the Developer ro provide rear yard landscaping for the all of the detached affordable units as directed by the City Council (including turf, shrubs, trees, irrigation, and a usable rear yard area). The units in the expanded First Phase would be subject to this. requirement. The Developer is required to submit conceptual rear yard Landscape Plans for review as part of the SDR application for the design of the homes. Energy Efficiency and Green Building Principles The First Phase AHA (Attachment 7 -AHA Section 6.D, Page 5) also obligates the developer to incorporate energy efficient measures and green building practices for all of the affordable detached units and secondary units. The units in the expanded First Phase would be subject to this requirement. Braddock & Logan has submitted a checklist outlining the measures that are proposed to address the City Council's direction. Braddock & Logan also submitted a "Single-Family GreenPoint Checklist" that identifies the energy efficiency and green building measures that will be incorporated into the affordable units. This checklist was incorporated into the First Phase AHA (Attachment 7, Exhibit 5) and the agreement requires Braddock & Logan to meet the minimum standards established by the checklist. The units in the expanded First Phase would be subject to this requirement. The proposed amendment to the First Phase AHA meets the intent of the Inclusionary Zoning Regulations. This AHA is based on the affordable housing proposal that was presented to the City Council by Braddock & Logan. B. Subsequent and Final Phase Affordable Housing Agreement The Subsequent Phase and Final Phase provide for the required inclusionary units for the remaining 627 lots in Positano. Subsequent Phase The Subsequent Phase of Positano includes a total of 88 lots as shown on Map 3 on page 4. These 88 lots generate an Inclusionary Zoning Requirement to provide 11 affordable units. Table 7: Subsequent Phase Inclusionary Requirement Total Units Inclusionary Re uirement Inclusionary Units 88 12.5% 11 As previously discussed, Braddock & Logan's affordable housing proposal includes the construction of 78 off-site affordable apartments on the Anderson property. These off-site affordable units will satisfy the Inclusionary Zoning obligation for the Subsequent Phase and Final Phase of Positano. However, Braddock & Logan is requesting the ability to construct these off- Page 7 of 10 site affordable units concurrent with the construction of the units in the Final Phase (please refer to the discussion of the Final Phase below). Therefore, Braddock & Logan proposes to initially satisfy the Inclusionary Zoning obligation for the 88 units in the Subsequent Phase by making a refundable deposit of in-lieu fees for these 11 affordable units. The agreement also permits the posting a letter of credit or other financial security instead of the deposit. The deposit, or security securing the deposit, would be returned to the Developer once the off-site affordable units on the Anderson property are complete and ready for occupancy. The Developer is also obligated to pay a prorated share of the $1,000,000 Community Benefit Payment on a per unit basis (i.e. $958.77 per unit) prior to issuance of each building permit in Positano (for a total of $84,372 for 88 units). Final Phase The Subsequent Phase of Positano includes a total of 539 lots as shown on Map 3 on page 4. These 5391ots generate an Inclusionary Zoning Requirement to provide 67 affordable units. Table 8: Final Phase Inclusionary Requirement Total Units Inclusionary Re uirement Inclusionary Units 539 12.5% 67 Braddock & Logan's affordable housing proposal includes the construction of 78 off-site affordable units on the Anderson property to satisfy a portion of the Inclusionary Zoning obligation for Positano and 4 affordable units to satisfy the Inclusionary Zoning obligation for the Anderson project, as directed by the City Council on March 4, 2008 (Attachment 6). The off-site affordable units will satisfy the Inclusionary Zoning obligation for the units in the Subsequent Phase and Final Phase. Please refer to Table 9 below for the unit mix and income affordability level of on- site units that will be constructed within the First Phase. The Developer is also obligated to pay a prorated share of the $1,000,000 Community Benefit Payment on a per unit basis (i.e. $958.77 per unit) prior to issuance of each building permit in Positano (for a total of $516,777 for 539 units). Table 9: Final Phase inclusi~narv iJnit Allncatiinn Unit Type Ownership /Rental Income Level Size of Units Affordability period 50% moderate (39 units) 78 Apartments* Rental 20% low (16 units) 2 bedroom/ ~ Perpetuity 30% very low (23 units) 2 bath Total: 78 Affordable Units * Plus 4 units to satisfy the Inclusionary Zoning requirements for the Anderson property. The Subsequent Phase AHA regulates the timing of construction of off-site affordable units to ensure that they are constructed concurrently with the Inclusionary obligation for the Final Phase of Positano. The timing triggers for the Anderson project are as follows: 1. Issuance of site work permits and commence site improvements for the Anderson project prior to issuance of the 505th Building Permit for Positano; 2. Issuance of building permits and commence construction of Anderson project prior to issuance of the 656th building permit for Positano; and 3. City sign-off on final inspection for the entire Anderson project prior to issuance of the 756tH building permit for Positano. The affordable units in the Anderson project will incorporate green building principles as directed by the City Council (AHA Section 2.c.ii, Page 5 -Attachment 2, Exhibit A). The affordable Page8of10 units are required to meet the minimum requirements for a GreenPoint Rated home as set forth in the "Multifamily GreenPoint Checklist". The proposed Subsequent AHA meets the intent of the Inclusionary Zoning Regulations. This AHA is based on the affordable housing proposal that was presented to the City Council by Braddock & Logan. II. Anderson Development Agreement The proposed Development Agreement (Attachment 3, Exhibit A) was drafted by the City Attorney with input from Staff and the Applicant to meet the needs of the City. The Development Agreement is based on the terms of the Standard Development Agreement for properties in the EDSP. The proposed Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the project for a period of five years. In return, the Developer agrees to comply with the Conditions of Approval and make commitments which the City might otherwise not have the authority to compel. The Development Agreement augments the City's standard development. regulations; defines the precise financial responsibilities of the developer; ensures timely provision of adequate public facilities for each project; and provides .terms for the Developer to advance funds for specific facilities which have community or area-wide benefit or for reimbursement from future development, as appropriate. The proposed Development Agreement includes a provision that extends the term of the Site Development Review approval for the 108-unit apartment project on the Anderson property for a period of five years. This extension will coincide with the terms of the proposed Affordable Housing Agreement that addresses the construction timing of the affordable units on the Anderson property in order to satisfy a portion of the affordable housing obligation for the Positano development. The Planning Commission reviewed the proposed. Development Agreement at their meeting on October 14, 2008 and unanimously adopted a Resolution recommending that the City Council adopt an Ordinance approving the Development Agreement (Attachments 7 and 8). A draft Ordinance approving the Development Agreement between the City of Dublin and Dublin RE Investors LLC is included as Attachment 3 to this Staff Report. PUBLIC NOTIFICATION: In accordance with State law, a public notice regarding this hearing was mailed to all property owners and occupants within 300 feet of the proposed project. A public notice was also published in the Valley Times and posted at several locations throughout the City. To date, the City has not received comments or objections from surrounding property owners or tenants regarding the current proposal. CONCLUSION: Braddock & Logan is proposing to amend the First Phase AHA to include additional lots and modify the unit mix and the income affordability for the secondary units, and they are requesting approval of a Subsequent Phase AHA for the remaining portions of Positano. Because the secondary units and the affordable single-family detached units are not strictly consistent with the requirements in the Inclusionary Zoning Ordinance that states the affordable units should "be allocated to households with very-low, low, and moderate income levels" as defined in the Ordinance, and should "reflect the range of numbers of bedrooms provided in the project as a whole" and because the secondary units do not satisfy the requirement that the units "not be distinguished by exterior design, construction, or materials," the City Council must find that Braddock & Logan's alternate proposal meets the purposes of the Inclusionary Zoning Ordinance. Staff believes this finding can be made based on the affordability characteristics of 4 bedroom homes, the fact that the units will be affordable in perpetuity, the addition of the Community Page 9 of 10 Benefit Payment, and the Developer's commitment to provide fully landscaped rear yards and energy efficiency measures which reduce housing costs. The proposed Development Agreement will implement the requirements of the EDSP, and the provisions of the Planned Development zoning (PA 07-037), and the approved SDR and associated Conditions of Approval for the northern 7-acres of the Anderson property. The terms of the proposed Development Agreement are also consistent with the proposed amendment to the First Phase AHA and the proposed Subsequent Phase AHA. RECOMMENDATION: Staff recommends that the City Council: 1) Receive Staff presentation; 2) Open the Public Hearing; 3) Take testimony from the Applicant and the public; 4) Close the Public Hearing and deliberate; and 5) Take the following actions: a) Adopt the Resolution approving Amendment No. 2 to the Affordable Housing Agreement for the First Phase of Positano to include a total of 416 lots and modify the unit mix and income affordability level of the Inclusionary units within the First Phase (Attachment 1); b) Adopt the Resolution approving a Subsequent Phase Affordable Housing Agreement between the City of Dublin and Dublin RE Investors, LLC for the portion of Positano that is outside the First Phase Affordable Housing Agreement (Attachment 2); and c) Waive the first reading and introduce the Ordinance approving a Development Agreement between the City of Dublin and Dublin RE Investors LLC for the northern 7-acres of the Anderson property (Attachment 3). Page 10 of 10 2sro RESOLUTION NO. - 08 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AMENDMENT NO.Z TO THE AFFORDABLE HOUSING AGREEMENT FOR THE FIRST PHASE OF POSITANO TO INCLUDE A TOTAL OF 416 LOTS AND MODIFY THE UNIT MIX AND INCOME AFFORDABILITY LEVEL OF THE INCLUSIONARY UNITS WITHIN THE FIRST PHASE (PA OS-038 AND PA 07-005) WHEREAS, Braddock and Logan, on behalf of Dublin RE Investors, LLC (the Developer) has requested an amendment to the Affordable Housing Agreement for First Phase to include a total of 416 lots, and modify the unit mix and income affordability level for the integrated units and secondary units; and WHEREAS, Dublin RE Investors, LLC (the Developer) is the owner of two parcels of land within Fallon Village which together are known as Positano and consists of 1,043 residential units; and WHEREAS, an Affordable Housing Agreement is required by the Inclusionary Zoning Regulations of City of Dublin Zoning Ordinance (Chapter 8.68); and WHEREAS, the Developer has proposed a comprehensive affordable housing proposal to address the requirements of the Inclusionary Zoning Ordinance for the entire Positano development and said proposal includes alternative methods of compliance with the Inclusionary Zoning Regulations; and WHEREAS, the Developer's affordable housing proposal for the overall 1,043 unit Positano development includes a combination of 18 on-site detached units and 34 on-site secondary units to remain affordable in perpetuity, 78 off-site apartments on the Anderson property to be affordable in perpetuity, and a $1,000,000 Community Benefit Payment; and WHEREAS, the City Council held a public meeting on October 18, 2005, to review the affordable housing proposal, and the City Council directed Staff to work with the Developer to refine the affordable housing proposal; and WHEREAS, the City and the Developer are parties to an Affordable Housing Agreement for the Construction of Inclusionary Units in the First Phase (247 units) of the Positano development, dated June 5, 2007 ("the Agreement") and Amended on June 17, 2008, wherein the Developer agreed to construct 9 single-family detached homes and 17 secondary units affordable to very-low, low, and moderate income households, and pay in-lieu fees for 5 affordable units pursuant to the requirements of Chapter 8.68 of the Dublin Municipal Code, the Inclusionary Zoning Regulations ("the Regulations"); and WHEREAS, the proposed amendment to the Affordable Housing Agreement for the First Phase would include a total of 416 lots; and WHEREAS, the proposed lots within the First Phase (416 lots) generate an Inclusionary Zoning obligation to provide a total of 52 affordable units in accordance with Section 8.66 of the Dublin Zoning Ordinance; 1 ~ ~'. r ;~' ~ ~~/ f1~4 .~4 "~ ATTACHMENT 1 ~ o~ 2S`a WHEREAS, the Developer proposes an alternate method of complying with the Inclusionary Zoning Regulations for the First Phase of the Positano development through a combination of constructing 18 detached four bedroom homes including 3 low income units, and 15 moderate income units to remain affordable in perpetuity; 34 secondary units including 25 very low income units, and 9 low income unit to remain affordable in perpetuity, and payment of a prorated share of the $1,000,000 Community Benefit Payment on a per unit basis ($958.77 per unit); and WHEREAS, a subsequent Affordable Housing Agreement is required to satisfy the affordable obligation for future phases of Positano; and WHEREAS, the Project has been found to be Categorically Exempt from the California Environmental Quality Act (CEQA); and WHEREAS, a Staff Report dated November 4, 2008, and incorporated herein by reference, described and analyzed the proposed amendment to the Affordable Housing Agreement; and WHEREAS, the City Council did use its independent judgment and considered all said reports, recommendations and testimony. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve amendments to the Affordable Housing Agreement for the First Phase of Positano to include 416 lots and provide 18 single-family detached units and 34 secondary units as described in Exhibit A. BE IT FURTHER RESOLVED that the City Manager is authorized and directed to execute the amendment to the Affordable Housing Agreement included as Exhibit A. PASSED, APPROVED AND ADOPTED this 4t" day of November 2008, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor -2- G:\PA#\2005\OS-038 B&L Stage 2 Fallon Village\Affordable Housing Agreement\CC 11.04.08\CC Reso AHA Amd 11.04.08.doc ~3 aP 2S'n ~~ AMENDMENT N0.2 TO AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. First Phase (416 Residential Lots) of the Fallon Village Project THIS SECOND AMENDMENT TO AFFORDABLE HOUSING AGREEMENT is hereby entered into this _ day of , 2008 by and between the City of Dublin.("the City") and Dublin RE Investors, LLC, a California limited liability company and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). Recitals 1. City and Dublin RE Investors are parties to an Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units, dated June 5, 2007, as amended by the First Amendment to said agreement, dated June 17, 2008 ("the Agreement"), which agreement sets forth an alternate method of the Developer's compliance with the Inclusionary Zoning Regulations contained in Chapter 8.68 of the Dublin Municipal Code ("the Regulations") for the first 247 of the 1043 residential lots (the "Project"). Dublin RE Investors has conveyed some of the residential units subject to this Agreement to Braddock & Logan Group II, L.P., which has become a party to this Agreement. 2. The Agreement refers to the initial 247 residential units in the Project as "the First Phase," and provides that Developer will satisfy its 31-inclusionary unit obligation in the First Phase (a) by constructing (i) 9 integrated inclusionary units (single-family homes) on 3,200 square foot lots, which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), and (ii) 17 1-bedroom, secondary dwelling units, which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"); (b) paying fees in lieu of construction for the remaining 5 unit obligation, which Developer has previously satisfied by paying $447,060 to City on January 30, 2008; (c) making a community benefit payment prior to issuance of each building permit equal to $958.77 (which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); (d) including rear yard landscaping and energy efficiency measures to reduce the homeowners' cost of living in the 13 integrated inclusionary units; and (e) incorporating green building principles into the 26 inclusionary units. 3. The Agreement provides that Developer will provide 8 very low-income units (8 1- bedroom Secondary Units); 6 low-income units (3 four-bedroom Integrated Units, and 3 one- bedroom Secondary Units); and 12 moderate-income units (6 four-bedroom Integrated Units, and 6 one-bedroom Secondary Units) for the 247 unit First Phase. 4. Developer, following further discussions with City staff, has proposed to increase the number of residential lots subject to the terms of the Agreement to 416 units (the "Expanded First Phase"). The Expanded First Phase is depicted in Exhibit A attached to this Amendment. Amendment No. 2 Affordable Housing Agreement First Phase of Positano Project EXHIBIT A TO ATTACHMENT 1 ~ ~~ ~3~ 5. Based on 416 units, the Developer's inclusionary zoning obligation under the Regulations for the Expanded First Phase would be 52 units (416 times 0.125 equals 52). Developer has proposed to satisfy its 52 unit inclusionary unit obligation for the Expanded First Phase by (a) constructing a total of 52 inclusionary units as follows: (i) 18 integrated inclusionary units, which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), (ii) 34 l -bedroom, secondary dwelling units, which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"); (b) making a community benefit payment prior to issuance of each building permit equal to $958.77 (which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); (c) including rear yard landscaping and energy efficiency measures to reduce the homeowners' cost of living in the 18 integrated inclusionary units; and (d) incorporating green building principles into the 130 inclusionary units. 6. To provide deeper affordability than required by the Regulations and the Agreement, Developer has proposed that the inclusionary units be provided as follows: fifteen (15) 4- bedroom, moderate-income Integrated Units: three (3) 4-bedroom, low-income Integrated Units; nine (9) one-bedroom, low-income Secondary Units; twenty-five (25) one-bedroom, very low- income Secondary Units. 7. The City is agreeable to the proposed amendment, and the City Council hereby finds that the alternate method of complying with the Regulations for the 416-unit Expanded First Phase meets the purposes of the Regulations. NOW, THEREFORE, Developer and City for themselves and their respective successors and assigns hereby agree as follows: Section 1. Amendment of Section 2 of the Agreement. The last sentence of Section 2 is amended to read as follows: "Developer hereby agrees that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase) pursuant to the tentative map approved by the VTM Resolution until such time as it has entered into the Subsequent Agreement." Section 2. Amendment of Section 3 of the Agreement. Section 3 of the Agreement is amended to read as follows: 3. Developer's Compliance with Affordable Housing Obli ag tion. Developer intends to complete the Project in multiple phases, including a phase that includes 8 model homes. Section 8.68.030 of the Regulations requires that all affordable units in a project be constructed concurrently with a project or phase of a project. The City hereby finds that adherence to the following schedule of construction for the Inclusionary Units would constitute construction of the Inclusionary Units concurrently with the market rate units in the Project as required by Section 8.68.030 of the Regulations. a. Part One of Expanded First Phase (Initial 247 Residential Parcels). Amendment No. 2 Affordable Housing Agreement First Phase of Positano Project ~ ~ 2 SU (i) Developer has identified a 247-lot portion of the Project, which is depicted in Exhibit 2, that is referred to herein as "Part One of the Expanded First Phase." Developer will satisfy its Affordable Housing Obligation for Part One of the Expanded First Phase by (a) constructing 26 Inclusionary Units (8 1-bedroom, very low- income, Second Units; 3 4-bedroom, low-income Integrated Units; 9 1-bedroom, low- income, Second Units; and 6 4-bedroom, moderate-income Integrated Units); (b) making a $958.77 community benefit payment prior to issuance of each building permit in Part One of the First Phase as provided in Section 5 of the Agreement. Exhibit 3 shows the location and type of the Inclusionary Units to be constructed within Part One of the Expanded First Phase. The City finds-that the preliminary construction schedule attached hereto as Exhibit 4, which shows the completion of the 26 Inclusionary Units in the initial three phases along with 78 market rate units, constitutes construction of the Inclusionary Units concurrently with the market rate units as required by Section 8.68.030 of the Regulations. (ii) Notwithstanding the foregoing, however, Developer will not be permitted to pull permits for more than 208 units in Part One of the Expanded First Phase until Developer has satisfied one of the following requirements: (A) Pay in-lieu fees to fulfill its obligation to construct 5 inclusionary units in Part One of the Expanded First Phase beyond the first 208 units (247 times 0.125 equals 30.875; 30.875 less 26 affordable units constructed equals 4.75), in the amount required by the Regulations and Council Resolution No. 56-02. As required by the Regulations, the entirety of the fee shall be paid at time of issuance of the 209th building permit in Part One of the Expanded First Phase. Instead of paying the in-lieu fee payments required by this Subsection, Developer may elect to provide an irrevocable standby letter of credit in an amount equal to the in-lieu fee payment required by this section and in a form acceptable to the City Manager and City Attorney, or such other financial security as the City Manager and City Attorney deem adequate to secure payment of the in-lieu fee required by this section. OR (B) Satisfy the requirements set forth in Section 3.b. below by providing the Subsequent Location Diagram and the Subsequent Construction Schedule, which shall have been approved by the City, as provided immediately below. (iii) Conditions for Release of In Lieu Fee. If Developer elects to pay the in-lieu fee, or provide the security in lieu thereof, as provided in Section 3.a.(ii)(A) above, the City shall refund to Developer any monies paid as in-lieu fees pursuant to such subsection and/or release or return any letter of credit or financial security provided to City in place of such in-lieu fees, with the City retaining any accrued interest, upon the Developer's satisfaction of the requirements set forth in Subsection 3.b below, by providing the Subsequent Location Diagram and the Subsequent Construction Schedule, which shall have been approved by the City. Amendment No. 2 Affordable Housing Agreement First Phase of Positano Project ~ ~._ ,a. ~- b. Part Two of Expanded First Phase (Subsequent 169 Residential Parcels). Developer has identified a 169-lot portion of the Project, which is depicted in Exhibit 2, that is referred to herein as the "Part Two of the Expanded First Phase." Prior to development on, and approval of subsequent final maps that include, Part Two of the Expanded First Phase, Developer shall have received the approval of the Community Development Director of (a) a Diagram of Location of Additional Inclusionary Units in the Expanded First Phase of the Project, in a form similar to Exhibit 3 attached hereto ("the Subsequent Location Diagram") and (b) a preliminary construction schedule for the subsequent phase of the Project ("the Subsequent Construction Schedule"), in a form similar to Exhibit 4 attached hereto. Upon the Community Development Director's approval, the Subsequent Location Diagram and the Subsequent Construction Schedule shall be added to, respectively, Exhibit 3 and Exhibit 4 to this Agreement with respect to the Integrated Units to be constructed in connection with Part Two of the Expanded First Phase. In approving the revised Exhibits 3 and 4, the Community Development Director shall find (a) that the revised Exhibit 3 shows 17 additional very low-income, Second Units and 9 additional moderate-income, Integrated Units; (b) that adherence to the revised Location Diagram and the revised Construction Schedule would constitute construction of 26 additional Inclusionary Units concurrently with Part Two of the Expanded First Phase and (c) that the 26 Inclusionary Units are "reasonably dispersed" throughout the Expanded First Phase, as required by Section 8.68.030.E of the Regulations. Developer hereby agrees that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase) until such time as it has satisfied the requirements of this Subsection. c. If the Building Official or Community Development Director determines that the Inclusionary Units have not been or are not being constructed concurrently with the market-rate units as required by this Section 3, the Building Official shall withhold further issuance of building permits in Part Two of the Expanded First Phase until construction of the Inclusionary Units in the phase has been completed to the satisfaction of the Community Development Director. Notwithstanding the foregoing, Developer shall be permitted to deviate from the preliminary construction schedule in Exhibit 4, provided that Community Development Director finds that the Inclusionary Units are constructed concurrently with the market rate units as required by Section 8.68.030 of the Regulations. Section 3. Amendment of Section 4 of the agreement. Section 4 of the Agreement is amended by adding the following at the end of such Section: "Upon execution and acceptance by all parties of Amendment No. 2 to the Agreement, the City shall refund to Developer all monies paid to City pursuant to this Section 4 in the amount of $447,060, with the City retaining any accrued interest." Section 4. Amendment of Section 6 of the Agreement. Section 6 of the Agreement is amended by adding the following at the end of such Section: Amendment No. 2 Affordable Housing Agreement First Phase of Positano Project 4 ~~~~ "E. Separate Utilities and Systems for Second Units. The Second Units shall contain separate gas and electrical meters, water heaters, and HVAC systems that are separate from the primary unit on the lot." Section 5. Amendment of Section 7 of the Agreement. Section 7 of the Agreement is amended to read as follows: "7. Unit Bedrooms and Size. The size of the Inclusionary Units shall be consistent with the Site Development Review approval of the Planning Commission, provided however, that minor changes to unit size maybe approved by the Community Development Director through a Site Development Review Waiver. The Developer proposes to provide in Part One of the Expanded First Phase: A. 8 very low-income units (8 1-bedroom Secondary Units); B. 12 low-income units (3 four-bedroom Integrated Units, and 9 one- bedroom Secondary Units); and C. 6moderate-income units (6 four-bedroom Integrated Units). The developer proposes to provide in Part Two of the Expanded First Phase: A. 17 very low-income units (17 1-bedroom Secondary Units); B. 91ow-income units (9 one-bedroom Secondary Units). The City hereby finds that, while this breakdown does not reflect the range of numbers of bedrooms provided in the First Phase as a whole, as required by Section 8.68.030.E of the Regulations, the Developer's alternate method of compliance meets the purposes of the Regulations." Section 6. Amendment of Section 8 of the Agreement. The following subparagraph is added to Section 8.A.i. of the Agreement: "a. The City is presently in the midst of considering altering the manner in which sales prices are calculated under the Regulations. Accordingly, notwithstanding anything to the contrary in this Agreement, in the event that such a change is made, the Developer may elect to calculate sales prices for Integrated Units pursuant to the amended Regulations effective immediately upon the date when such Regulations become effective." Section 7. Amendment of Section 9 of the Agreement. All references in Section 9 to the "First Phase" shall be changed to the "Expanded First Phase". Section 8. Amendment of Section 10 of the Agreement. Developer and City shall execute and acknowledge a revised Memorandum of this Agreement ("Memorandum") substantially in Amendment No. 2 Affordable Housing Agreement First Phase of Positano Project g ~ .~~~~ the form attached hereto as Exhibit D, and City shall cause the Memorandum to be recorded in the Official Records of Alameda County upon its execution. This Memorandum shall supersede and replace the Memorandum referenced in the Original Agreement. Section 9. Amendment of Exhibit 2, Exhibit 3 and Exhibit 4. Exhibit 2, Exhibit 3, and Exhibit 4 of the Agreement are hereby replaced with Exhibit A, Exhibit B, and Exhibit C to this Agreement. Section 10. All other provisions of the Agreement shall remain in effect. [EXECUTIDNPAGE FOLLOWS) Amendment No. 2 Affordable Housing Agreement First Phase of Positano Project °~~;'~~ IN WITNESS WHEREOF, the parties hereto have cat.ised this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN DUBLIN RE INVESTORS, LLC a California limited liability company By: Joni Pattillo, City Manager Attest: Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney 1160189.4 By: Braddock and Logan Services, Inc. a California corporation Its Manager J _.---------_. `~ Name: ~-----~ Its: BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner ~~ ----"' `~ Name: Its: Amendment No. 2 Affordable Housing Agreement First Phase of Positano Project i n ,~ ~ EXHIBIT A Revised Exhibit 2 to the Agreement ["Diagram of the First Phase of the Project"] ll ~ ~-~ o ~ __ -~ _ =_ . H w F.. o N 0 ~ - ° °a __ = z ~~~~ wwm~w o ~g C. , ', ~ '~ ® ~ ~ z ~ I ¢,, ,~,aOO~ o ~ OU ~ O c~v~~a m w v ~ 8 p, ~~ (~ , m ~ ~1 , ~ a, W~ m ~ Q d ~, ~p ~ . ~ 33, b N ~ ~ ~ ~ ~ a ~------------------ -----I a .. rs, 4-. ~" w ~ I I o .~ ~ ca ~ .,.~ ,.I' ~ ,/ ' ` i ~ ~ ~ ,~ o, , ~ I . I . , ~ o ~~ o ~~ ~^ ~ a o ~~ I ~ „~ I~ ~~ o~ ~ rn o~ a i o ~ ~~ ~~ ~~., .I ~ ~~ n- ~ a ~ c~ .°° i~. ~ • I , /~ 'J i I , _ ~~ .1=~_ ~ /, ~ ~'1 ---- ---- --- ----- ., _-~" '~J --J ^'' / ,/ ~. ~ _ ~ ~, .~ .~ "~ ~ ~ `~ ;, ~, 't `'"-~ ., ;~ ~ to ~~ EXHIBIT B Revised Exhibit 3 to the Agreement ["Diagram of Location of Inclusionary Units in the, First Phase of the Project"] ~_ O ~ a .t R n~ ~ o " ~ o W~ ~ ~ ~ ~, W ~ ~ Q o ~ ] j ~ ~ ~ O 1~1 ~ O N N N o ( ~B M U o r7 r p> ~" ~~ A ~ ® ° .li z ~ W O ,~ ~ ! ~ O W ~ tL ~ [~ o p'( vi ~~I ~ c z a o ~ ~ o ~~ ~ ~~ ' .~ ~ > ~ b df '-' ~ ~ O 2 m N N cv ~ ~ ~ ~ O ~ ~ ~ ~ ~ ~ S ~~ v~ N ~~o ~~ ~ ~ ~ ~ cC ~ fC 2N ~.. ~ oo Q ~~ LN [ ~ ~ ~, ~ o NN ~ v7 ° ~~ ~ ~ ~ .~.. o ++ ~ ~ ~ a~i 3 'b a , c d W .-~ ~ iG d ..] p N m ~--~ 0...7 d .-7 y A > 4 ...1 r~rO1~ f.. ~4 ~ ~ ~" ~^ Q y Q .--~ ~~G//J //3~~~ y {-~-i 4-1 C/] (~y / ^ O R --t ~~~ ~ ~/ ~~ ~ I /~ /// S`~~~ ~r ~ ,,, QL^J iF ~ a N .~i 7® 7 N~ N W w * ~ O N 0 Q .fir . . ® 3Q' O V' O N N-~ 4 ^~ M~. a. N ~ M °~ o w ~' ~ ~~ ~~15 ~'~ri y ~ M ® N ® ~ ? r~ U ~~ N~ O ~® # ND 4 ~~ O jF ^ M ~ M 151 r ~ O ~A® ._ ~~ M~ b7 -- ® bJS, N O M® ~© a Q H O 2 i4 ~ ~~ EXHIBIT C Revised Exhibit 4 to the Agreement ["Preliminary Construction Schedule"] l5 ~P.2S~ -r Positano First Phase Preliminary Construction Schedule MODELS Income Level Moderate Low Ve Low Sub-Total BMR '' Market Total Nei hborhood A ~ 4 4 Nei hborhood B 4 4 Totai 0 0 0 0 8 8 PHASE ONE income Level Moderate Low Ve Low Sub-Total BMR Market Total Market Rate -Nei hborhood A 13 13 Market Rate -Nei hborhood B 11 11 Bedroom BMR 1 1 0 2 2 Seconda Unit 0 7 0 7 7 Total 1 8 0 9 24 33 Percanta a of Phase-Units 3% 24% 0% 27% 73% 100% PHASE TWO Income Level Moderate Low Ve Low Sub-Total BMR Market "Total Market Rate -Nei hborhood A 14 14 Market Rate -Nei hborhood B 12 12 Bedroom BMR 2 1 0 3 3 Seconda Unit 2 0 3 5 5 Total 4 1 3 8 26 34 Percanta a of Phase Units 12% 3% 9% 24% 76% 100% PHASE THREE Income Level Moderate Low Ve Low Sub-Total BMR' Market "Total Market Rate -Nei hborhood A 16 16 Market Rate -Nei hborhood B 12 12 Bedroom BMR 3 1 0 4 4 Seconda Unit 0 0 5 5 5 Total 3 2 5 10 28 38 Percanta a of Phase Units 8% 5% 13% 26% 74% 100% PHASE FOUR Income Level Moderate Low Ve Lowe Sub-Total BMR Market Total. Market Rate -Nei' hborhood B 12 12 PHASE FIVE Income Level Moderate' Low Ve Low Sub-Total BMR Market Total Market Rate -Nei hborhood B 12 12 PHASE SIX Income Level Moderate' Low Ve Low Sub-Total BMR Markef_ Total Market'Rate -Nei hborhood B 10 10 PHASE SEVEN Income Level Moderate Law Ve Low Sub-Total BMR '' Market Total Market Rate -Nei hborhood B 12 12 16 ~ ~ sv PHASE EIGHT Income Level Moderate Low Ve Low Sub-Total BMR Market Total Market Rate -.Nei. hborhood B g g PHASE NINE Income Level Moderate '' Low Ve Low Sub-Total BMR Market Total Market Rate -Nei hborhood B 14 14 PHASE TEN income Level Moderate: ' 'Low Ve Low' Sub-Total BMR Market... Total Market Rate -Nei hborhood B ~ 13 13 PHASE ELEVEN Income Level Moderate Low Ve Low Sub-Total BMR Market Total Market Rate -Nei hborhood B g g PHASE TWELVE Lncome Level 'Moderate `Low Ve Low Sub-Tots[ BMR` ' Market Total Market Rate -Nei hborhood B 10 10 PHASE THIRTEEN Income Level Moderate ' Low Ve Low Sub=Total. BMR Market Total Market Rate -Nei hborhood B 11 11 PHASE FOURTEEN Income Level Moderate' Low Ve Low Sub-Total BMR 'Market Total Market'Rate -Nei hborhood B 12 12 LIN LOTS Income Level Moderate Low Ve `Low Sub-Total BMR Market 'Total Market Rate -Nei hborhood B 12 12 I~ ~~~ EXHIBIT D Memorandum of Agreement for the Construction of Inclusionary Units IS ~.~~°~ RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder's use MEMORANDUM OF AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. First Phase (416 Residential Lots) of the Fallon Village Project This Memorandum of Affordable Housing Agreement for the Construction of Inclusionary Units and the Payment of Fees. In-Lieu of Constructing Inclusionary Units (this "Memorandum") is entered into on this _ day of , 2008, by and between the City of Dublin, a municipal corporation (hereafter "City") and Dublin RE Investors, LLC, a California limited liability company, and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). 1. Pursuant to the Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units, dated as of June 5, 2007, and as amended on June 17, 2008, by and between City and Developer (the "Agreement"), the Parties have set forth their respective obligations with respect to the provision of affordable units on lands presently owned by Developer, a portion of the 1043 residential parcel Positano Project (the "Project") ,and more specifically described in Exhibit A (the "Property"). These obligations run with the land. 2.. The Agreement sets out the specific obligations for the construction of Inclusionary Units and payment of fees in lieu thereof in conjunction with the initia1416-residential parcel phase of the development of the Project ("the Expanded First Phase"). It also obligates the Developer to make a Community Benefit Payment, as described in the Agreement, prior to issuance of building permits for each residential unit (excepting Second Units) within the Expanded First Phase. Development on, and the City's approval of subsequent final maps that include, any portion of the Property beyond the Expanded First Phase shall require either an amendment to this Agreement or a subsequent affordable housing agreement ("the Subsequent Agreement") setting forth the manner in which the Regulations will be complied with for the remainder of the Project. The Agreement also contains the Developer's covenant, on behalf of itself, and its I~ ~ ~ successors and assigns, that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase) until such time as it has entered into the Subsequent Agreement. 3. Developer and City have executed and recorded this instrument to give notice of the Agreement, and the respective rights and obligations of Developer and City. The unrecorded Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees in Lieu of Constructing Inclusionary Housing Units is incorporated by reference in its entirety in this Memorandum. 4. This Memorandum shall bind and inure to the benefit of the parties and their respective heirs, successors and assigns, subject however to restrictions set forth in the Agreement regarding assignment. [EXECUTION PAGE FOLLOWS] °~ ~~ IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN By: Attest: Joni Pattillo, City Manager Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney DUBLIN RE INVESTORS, LLC a California limited liability company By: Braddock and Logan Services, Inc. a California corporation Its Manager By: Name: Its: BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner By: _ Name: Its: ~ / ~P 2 5~ ~r 19149-10 10/21 /2008 MW/SK EXHIBIT "A" Page 1 of 4 FALCON VILLAGE PROPERTY ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF DUBLIN, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, BEING ALL OF THE NORTHWEST QUARTER OF SECTION 35 AS DESCRIBED IN SERIES No. 2003-108250, ALAMEDA COUNTY RECORDS, AS WELL AS A PORTION OF THE SOUTH HALF OF SECTION 27 AS SHOWN ON PARCEL MAP 9208 RECORDED IN BOOK 292 OF MAPS PAGES 16-17, ALAMEDA COUNTY RECORDS AND A PORTION OF THE NORTH HALF OF SECTION 34 AS SHOWN ON SAID PARCEL MAP 9208, LYING WITHIN TOWNSHIP 2 SOUTH, RANGE 1 EAST, MOUNT DIABLO BASE AND MERIDIAN, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL 1 BEGINNING AT THE COMMON QUARTER CORNER OF SECTIONS 26 AND 27 AS SHOWN ON SAID PARCEL MAP 9208, ALONG THE SECTION LINE COMMON TO SAID SECTIONS 26 AND 27, SAID SECTION LINE BEING ALSO THE WESTERLY LINE OF THE LANDS OF MUEHLHAUSER, RECORDED IN SERIES No. 2002-097480, ALAMEDA COUNTY RECORDS, SOUTH 00°48'41" WEST 2,642.65 FEET, TO THE COMMON SECTION CORNER OF SECTIONS 26, 27, 34, AND 35; THENCE ALONG THE COMMON SECTION LINE OF SECTIONS 34 AND 35, SAID SECTION LINE BEING ALSO THE WESTERLY LINE OF DUBLIN RE INVESTORS, LLC, SERIES No. 2003-108250, ALAMEDA COUNTY RECORDS, SOUTH 00°44'28" WEST 2,635.93 FEET, TO THE COMMON QUARTER CORNER OF SECTIONS 34 AND 35; THENCE ALONG THE EAST-WEST QUARTER SECTION LINE ENTERING SECTION 34, SAID EAST-WEST QUARTER SECTION LINE BEING ALSO THE NORTHERLY LINE OF FIRST AMERICAN TITLE GUARANTY CO., SERIES No. 98388140, ALAMEDA COUNTY RECORDS, NORTH 89°51'52" WEST 2,651.00 FEET TO THE SOUTHWEST CORNER OF PARCEL "A" AS SHOWN ON SAID PARCEL MAP 9208; THENCE LEAVING SAID EAST-WEST QUARTER SECTION LINE ALONG THE WESTERLY LINES OF SAID PARCEL "A", THE FOLLOWING SIX (6) COURSES: 1) NORTH 33°45'20" WEST 128.91 FEET; 2) NORTH 22°56'58" WEST 83.13 FEET; 3) NORTH 10°41'42" WEST 61.76 FEET; 4) NORTH 03°58'13" WEST 101.75 FEET; 5) NORTH 03°49' ] 8" EAST 159.00 FEET; AND 6) NORTH 30°35'37" WEST 33.48 FEET; THENCE LEAVING SAID WESTERLY LINE OF SAID PARCEL "A" ALONG THE WESTERLY LINE OF PARCEL "A", PER No. LLA 07-01 SERIES No. 2007-200949, ALAMEDA COUNTY RECORDS THE FOLLOWING THIRTY-NINE (39) COURSES: P:\ l 9149Uegal sUORDAN-AG MT-LEGALS\LEGAL-0 VERALL. doc as ~ 2~v 19149-10 10/21 /2008 MW/SK EXHIBIT "A" Page 2 of 4 1) SOUTH 66°40'50" WEST 92.39 FEET TO THE BEGINNING OF ANON-TANGENT CURVE TO THE LEFT; 2) ALONG SAID NON-TANGENT CURVE TO THE LEFT, FROM WHICH THE RADIUS POINT BEARS SOUTH 66°40'50" WEST, HAVING A RADIUS OF 1,100.00 FEET; THROUGH A CENTRAL ANGLE OF OS°19'52", FOR AN ARC DISTANCE OF 102.35 FEET; 3) NORTH 28°39'03" WEST 58.57 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT; 4) ALONG SAID CURVE TO THE RIGHT HAVING A RADIUS OF 80.00 FEET, THROUGH A CENTRAL ANGLE OF 11 °47'55", FOR AN ARC DISTANCE OF 16.47 FEET; TO A POINT OF REVERSE CURVATURE; 5) ALONG SAID REVERSE CURVE HAVING A RADIUS OF 150.00 FEET, THROUGH A CENTRAL ANGLE OF 54°01'09", FOR AN ARC DISTANCE OF 141.42 FEET; 6) NORTH 70°52'17" WEST 6.55 FEET TO THE BEGINNING OF A CURVE TO THE LEFT 7) ALONG SAID CURVE TO THE LEFT HAVING A RADIUS OF 120.00 FEET, THROUGH A CENTRAL ANGLE OF 19°07'43", FOR AN ARC DISTANCE OF 40.06 FEET; 8) NORTH 90°00'00" WEST 189.85 FEET TO THE BEGINNING OF ANON-TANGENT CURVE TO THE LEFT; 9) ALONG SAID NON-TANGENT CURVE TO THE LEFT, FROM WHICH THE RADIUS POINT BEARS SOUTH 89°5724" WEST, HAVING A RADIUS OF 886.00 FEET; THROUGH A CENTRAL ANGLE OF 32°31'05", FOR AN ARC DISTANCE OF 502.85 FEET; 10) NORTH 53°02'51" EAST 195.67 FEET; 11) NORTH 28°07'47" EAST 284.00 FEET; 12) NORTH 49°41'57" EAST 122.85 FEET; TO THE BEGINNING OF A CURVE TO THE RIGHT; 13) ALONG SAID CURVE TO THE RIGHT HAVING A RADIUS OF 42.00 FEET, THROUGH A CENTRAL ANGLE OF 59°26'40", FOR AN ARC DISTANCE OF 43.58 FEET; 14) SOUTH 70°51'23" EAST 49.05 FEET; . 15) SOUTH 75°22'09" EAST 45.89 FEET; 16) NORTH 90°00'00" EAST 58.47 FEET; 17) NORTH 69°08'47" EAST 31.73 FEET; 18) NORTH 58°52'28" EAST 119.88 FEET; 19) NORTH 10°47'11" WEST 268.63 FEET; 20) NORTH 07°19'39" WEST 250.02 FEET; 21) NORTH 20°43'33" WEST 90.89 FEET; P:\19149\legalsVORDAN-AGMT-LEGALS\LEGAL-0VERALL.doc a3 ~ ~ ~~ 19149-10 10/21 /2008 MW/SK EXHIBIT "A" Page 3 of 4 22) NORTH 12°41'35" WEST 30.86 FEET; 23) NORTH 00°44'30" WEST 120.97 FEET; 24) NORTH 17°41'12" WEST 147.19 FEET; 25) NORTH 00°19'22" WEST 106.46 FEET; 26) NORTH 17°50'10" EAST 64.19 FEET; 27) NORTH 02°18'30" EAST 81.36 FEET; 28) NORTH 16°41'10" EAST 51.40 FEET; 29) NORTH 37°18'42" EAST 65.35 FEET; 30) NORTH 21°23'28" EAST 200.71 FEET; 31) NORTH 71°06'39" WEST 99.04 FEET; 32) NORTH 50°42'23" WEST 48.07 FEET; 33) NORTH 21°32'10" WEST 88.40 FEET; 34) NORTH 14°25' 13" WEST 134.28 FEET; 35) NORTH 10°57'46" WEST 96.03 FEET; 36) NORTH 00°39'24" EAST 140.60 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT; 37) ALONG SAID CURVE TO THE RIGHT HAVING A RADIUS OF 291.02 FEET, THROUGH A CENTRAL ANGLE OF 49°58'40", FOR AN ARC DISTANCE OF 253.85 FEET; 38) NORTH 71°20'52" EAST 82.06 FEET; AND 39) SOUTH 52°39'14" EAST 39.69 FEET; TO THE WESTERLY LINE OF PARCEL "D" AS SHOWN ON SAID PARCEL MAP 9208; THENCE ALONG SAID WESTERLY LINE OF PARCEL "D"THE FOLLOWING TWO (2) COURSES: 1) NORTH 48°46'28" EAST 1,739.56 FEET; 2) NORTH 00°09'11" WEST 235.96 FEET TO A POINT ON THE QUARTER SECTION LINE OF SAID SECTION 27, SAID QUARTER SECTION LINE BEING ALSO THE SOUTHERLY LINE OF ACACIA PARTNERS II, SERIES No. 2005-037868, ALAMEDA COUNTY RECORDS, AND THE NORTHERLY LINE OF SAID PARCEL "D"; THENCE ALONG SAID QUARTER SECTION LINE SOUTH 89°40'26" EAST 1,485.76 FEET; TO SAID POINT OF BEGINNING. CONTAINING 328.58 ACRES, MORE OR LESS. P:\l 9149VegalsV ORDAN-AG MT-LEGA LS\LEGAL-0VERA LL.doc a ~ ~.. 19149-10 10/21 /2008 MW/SK EXHIBIT "A" Page 4 of 4 PARCEL 2 BEGINNING AT THE COMMON CORNER OF SECTIONS 26, 27, 34, AND 35 ALONG THE. SECTION LINE COMMON TO SECTIONS 26 AND 35, SAID SECTION LINE ALSO BEING THE SOUTHERLY LINE OF THE LANDS OF MUEHLHAUSER, RECORDED IN SERIES No. 2002-097480, ALAMEDA COUNTY RECORDS, SOUTH 88°43'28" EAST 2640.61 FEET TO THE NORTH QUARTER CORNER OF SECTION 35; THENCE ALONG THE NORTH-SOUTH QUARTER SECTION LINE OF SAID SECTION 35, SAID QUARTER SECTION LINE BEING ALSO THE WESTERLY LINE OF ACACIA PARTNERS I, LLC. RECORDED IN SERIES No. 2005-037867, ALAMEDA COUNTY RECORDS, SOUTH 00°55'27" WEST 2636.26 FEET TO THE CENTER QUARTER CORNER OF SECTION 35; THENCE ALONG THE EAST-WEST QUARTER SECTION LINE OF SAID SECTION 35, SAID QUARTER SECTION LINE BEING ALSO THE NORTHERLY LINE OF THE LANDS OF CROAK, RECORDED IN SERIES No. 79-229985, ALAMEDA COUNTY RECORDS; NORTH 88°43'19" WEST 2631.95 FEET TO THE WEST QUARTER CORNER OF SECTION 35; THENCE ALONG THE COMMON SECTION LINE OF SAID SECTIONS 34 AND 35, BEING ALSO THE EASTERLY LINE OF PARCELS "C" AND "D" OF PARCEL MAP 9208 RECORDED IN BOOK 292 OF MAPS PAGES 16-17, ALAMEDA COUNTY RECORDS; NORTH 00°44'09" EAST 2636.21 FEET TO SAID POINT OF BEGINNING. BEARINGS, DISTANCES AND AREA CALCULATION ARE BASED ON RECORD OF SURVEY No. 1675, BOOK 25 RECORD OF SURVEYS PAGES 31-32 ALAMEDA COUNTY RECORDS. CONTAINING 159.54 ACRES, MORE OR LESS. END OF DESCRIPTION. THIS DESCRIPTION IS FOR THE PURPOSE OF AN EXHIBIT ONLY AND DOES NOT CONSTITUTE A LEGAL DESCRIPTION FOR THE PURPOSES OF CREATING NEW DIVISIONS OF LAND OR CONVEYANCE. mAC~Y~somps CIVIL ENGINEERING~LAND PLANNING~LAND SURVEYING 5142 FranWin Drive Suite B, Pleasanton, CA. 94588-3355 (925) 225-0690 P:\ 19149UegaIsUORDAN-AGMT-LEGALS\LEGAL-0VERALL.doc ~5 °G 25~ 7. 2 5., ~ R. i E. NOTE: BEARINGS AND DISTANCES M d; B M WITHOUT AN ASTERISK(*) WERE TAKEN 22 ; 23 FROM RECORD OF SURVEY NO. 1005 ---I--- ACACIA PARTNrRS II, IIC, 27 ~ 28 5ER1ES No. 2005-037858 ACACIA PARTNERS ~ APN 905-0003-014-03 SERIES No. 2005-037358 -, APN 985-0028-001 \; ~ POB _______~______________ N89°40'26"W 1485.76' i PARCEL 1 -------------------------- -r---- N00°09'11"W 1 4 CORNER OF ~ PARCEL 2 ~`~ 235.96' 1 / ' PM 3327 1~~' ~ SECTIONS 26 & 27 8K. 293 PM P. 14-17 ~~~~ PARCEL '0' ~ ~'~-------, a~i ~ ~ MUEHLHAUSER ~ O.S.R.S.D. ~~ ~~ ~ PM 9208 N 1 SERIES No. 20OZ-097480 %-----------. ~ APN 905-0003-012 ' ----`~.' BK292 M PG16-17 wl PARCEL F 313.911 AC. ~ , TRACT 7253 ~ ' oo ~ *NOTE: BEARINGS AND DISTANCES WITH BK.263 M P.73-73I I, PARCEL A ~~ AN ASTERISK(*) FOR THE NW 1/4 OF ~ `~_\ ,___-_ ~~, No. LISA 07-01 °zl SECTION 35 WERE TAKEN FROM ~ ^~I ~ SERIES No. 2007-200949 RECORD OF SURVEY N0. 1675* I ~ ~ ,~`_ 14.671 AC. ~ ~ I ~ ~ ~ 27 26 +N88°43'28"W 2640.61'* ~ D U B L I N ~ ~ '1 PARCEL B' S .~ --~----..---- I _____ RANCH ; t '~ W c° ~~ ~ , 35 POB PARCEL 2 N ~ r ~ DUBLIN RE INVESTORS, LLC ~ '~~ ;~, I :- SERIES No. 2003-108250 x ~; I '~ ' / ' °' `" ROS N0. 1675 ~° I ~ v ,'~ ~"'"~ ~ ~' ~ ~ - ~ L'~' ~ ' ° BS25 R.O.S. PG31-32 ~ ~ °o / - - i I cfl I co "~ ~ - O I t r -- ~ ~ I N N APN 905-0002-003 ~ ~ rn I ,., `. ~~~ \~ i w w 159.541 AC. `~' ~ o a ~ ~ ~-----~°° I °' wI z c~ a ~ ~ N i ~ NW I /4 SECTION 35 N ~ "' ,,; 1 ~ PARCF_I_ 'C' * , ~ T. 2 S. R. 1 E. ~ ~ ~ z ~ L~,;~1 PARCEL 'A' ~~ o o I.D.B. ~ M. o~ a u~ z ~. zlz z° a~a 1/4 CORNER OF * I c,> ~,, ~~ ; SECTIONS 34 & 35 1 `~ '" N89°51_52651.00' _ _ *N88°43' 19"W 2631.95' FIRST AMERICAN TITLE i CROAK // GUARANTY CO. i SERIES No. 79-229985 SERIES No. 90388140 ; APN 905-0002-002 ' A?N 935-0027-OOS ; APN 905-0002-002-d1 IJORDAN RANCH) o' Soo' 1000' Zooo~ ~~~ i PAGE 1 OF 1 FALCON VILLAGE PROPERTY CITY OF DUBLIN COUNTY OF ALAIJEDA CALIFORNIA LEGEND: POB BOUNDARY LINE EXISTING LOT LINE POINT OF BEGINNING mAC~Y~somps CNIL ENGINEERING~LAND PLANNING~LAND SURVEYING Pleasonton, CA (925) - 225-0690 DRAWN DATE SCALE JOB N0. AM8/JTM 10-21-08 1"=1000' lasta_nli ~~~~~~ RESOLUTION NO. XX - 08 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A SUBSEQUENT PHASE AFFORDABLE HOUSING AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN RE INVESTORS, LLC FOR THE PORTION OF POSITANO THAT IS OUTSIDE THE FIRST PHASE AFFORDABLE HOUSING AGREEMENT (PA 05-038 and PA 07-005) WHEREAS, Dublin RE Investors, LLC (the Developer) is the owner of two parcels of land within Fallon Village which together are known as Positano and consists of 1,043 residential units; and WHEREAS, an Affordable Housing Agreement is required by the Inclusionary Zoning Regulations of City of Dublin Zoning Ordinance (Chapter 8.68); and WHEREAS, the Developer has proposed a comprehensive affordable housing proposal to address the requirements of the Inclusionary Zoning Ordinance for the entire Positano development and said proposal includes alternative methods of compliance with the Inclusionary Zoning Regulations; and WHEREAS, the Developer's affordable housing proposal for the overall 1,043 unit Positano development includes a combination of 18 on-site detached units and 34 on-site secondary units to remain affordable in perpetuity, 78 off site apartments on the Anderson property to be affordable in perpetuity, and a $1,000,000 Community Benefit Payment; and WHEREAS, the Developer proposes to construct a 108-unit apartment project on the northern 7- acre portion of the Anderson property consisting of a total of 82 affordable units, including 78 affordable units to satisfy a portion of the Inclusionary Zoning obligation for the Positano development, and 4 units to satisfy the Inclusionary Zoning obligation for the Anderson property, 25 market rate units and 1 manager's unit; and WHEREAS, the City Council held a public meeting on October 18, 2005, to review the affordable housing proposal, and the City Council directed Staff to work with the Developer to refine the affordable housing proposal; and WHEREAS, Staff and Developer have been working to refine the proposal in accordance with the direction from the City Council; and WHEREAS, an Affordable Housing Agreement for the First Phase (416 units) of Positano, with an obligation to provide 52 affordable units, was entered into in order to allow the Developer to proceed with the initial phase of the project; and WHEREAS, the Affordable Housing Agreement for the First Phase of Positano requires the Developer to enter into a subsequent Affordable Housing Agreement to address the Inclusionary Zoning Regulations for the remaining 627 lots in the Subsequent Phase and Final Phase of Positano; and WHEREAS, the Developer proposes an alternate method of complying with the Inclusionary Zoning Regulations for the Subsequent Phase and Final Phase Positano development through a combination of deposting fees in-lieu of constructing units, or substitute security therefore, until the off- ATTACHMENT 2 a~ ~ z~ site affordable units on Anderson are. completed, and the construction of 78 2 bedroom/2 bathroom apartments on the Anderson property to remain affordable in perpetuity including 23 very-low income units, 16 low income units, and 39 moderate income units, and payment of a prorated share of the $1,000,000 Community Benefit Payment on a per unit basis ($958.77 per unit); and WHEREAS, the Developer proposes to comply with the Inclusionary Zoning Regulations for the Anderson Project by constructing 4 2 bedroom/2 bathroom apartments to be affordable in perpetuity including 1 very-low income unit, 1 low income unit, and 2 moderate income units; and WHEREAS, the project has been found to be Categorically Exempt from the California Environmental Quality Act (CEQA); and and and WHEREAS, a Staff Report was submitted to the City Council for consideration of this request; WHEREAS, the City Council did hold a public hearing on said agreement on November 4, 2008; WHEREAS, the City Council did use its independent judgment and considered all said reports, recommendations, and testimony. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby find that the alternate methods of compliance with the Inclusionary Zoning Regulations contained in the proposed Affordable- Housing Agreement for the subsequent phase (which is included as Exhibit A), including the combination of posting a bond or letter of credit, constructing 78 off-site apartments on the Anderson property that will remain affordable in perpetuity, and the payment of a prorated share of the $1,000,000 Community Benefit Payment, meet the purposes of Inclusionary Zoning Regulations. NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council of the City of Dublin does hereby approve the Subsequent Affordable Housing Agreement between Dublin RE Investors, L,LC, and the City of Dublin for the remaining 627 lots of the Positano development as described in Exhibit A. BE IT FURTHER RESOLVED that the City Manager is authorized and directed to execute the Subsequent Affordable Housing Agreement. PASSED, APPROVED AND ADOPTED this 4`h day of November 2008 by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor 2 G:IPA#12005105-038 B&L Stage 2 Fallon VillagelAffordableHousing AgreementlCC /1.04.081CCReso Subsequent AHA //.04.08.doc 028 0~ 2~D SUBSEQUENT AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. Subsequent and Final Phases (627 Residential Lots) of the Positano Project THIS AGREEMENT is hereby entered into this _ day of , 2008 by and among the City of Dublin ("the City") and Dublin RE Investors, L.L.C., a California limited liability company and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). Recitals A. Chapter 8.68 of the Dublin Municipal Code contains Inclusionary Zoning Regulations ("the Regulations"). The Regulations were adopted pursuant to Strategy I.B. 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. B. The City of Dublin adopted the 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 Regulations is to achieve a balanced community with housing available at all income levels. C. Accordingly, the Regulations require that residential projects with 20 or more units/lots contain at least 12.5% very low-, low- and moderate-income units/lots. The Regulations require that the units be constructed in the following proportions: 30% very low- income, 20% low-income, and 50% moderate income. In lieu of constructing 40% of the Inclusionary Units that the Regulations would otherwise require, the Regulations authorize developers to pay a fee, currently set by the City through June 30, 2009 at $91,916 per unit required but not built. If fees are paid in lieu of construction, developers are still required to construct 60% of the obligation. D. Developer is the owner of, or has the right to purchase, certain real property in the City of Dublin generally located east of Fallon Road and more specifically described in Exhibit 1 (the "Property"). The Property includes the Subsequent Phase, the Final Phase, and the Expanded First Phase, all as defined in Section 2 of this Agreement. E. Developer and its successors-in-interest desire to construct a residential project on the Property that consists of 1,043 for-sale units (collectively "the Project"), and the Project is subject to the Regulations. The Subsequent Phase, the Final Phase, and the Expanded First Phase are depicted in Exhibit 2. F. On November 8, 2005, the Planning Commission ("PC") approved a vesting tentative subdivision map (PC Reso. No. OS-61) ("the VTM Resolution") to create 1,043 residential Subsequent Affordable Housing Agreement for the Positano Project EXHIBIT A TO ATTACHMENT 2 a ~ ~ Asa parcels, and, on September 11, 2007, the Planning Commission approved Site Development Review ("SDR") for an initial phase of the Project on approximately 72 acres, which includes 247 lots. Developer has filed the first of "multiple final maps" based on the tentative subdivision map, which created 247 residential parcels. G. Condition No. 2 of the VTM Resolution provides as follows: Inclusionary Zoning: Prior to approval of Site Development Review or recordation of the first phased Final Map, whichever occurs first, the owner or owners of all the property subject to this vesting tentative map shall enter into an Affordable Housing Agreement with the City for the entire Vesting Tentative Map area, which agreement shall be recorded against such area and against any other property where Developer proposes to construct off-site affordable units if approved by the City Council pursuant to Dublin Municipal Code section 8.68.040.B. Such agreement shall include but is not limited to providing detail regarding the number of affordable units required, specify the schedule of construction of affordable units, set forth the developer's manner of compliance with City of Dublin Inclusionary Zoning Regulations and impose appropriate resale controls and/or rental restrictions on the affordable units. If the agreement provides for construction of the units off-site, as provided in DMC section 8.68.040.B, it shall require City Council approval and Council findings as required by said section and shall include provision for security adequate to assure completion of the off-site affordable units concurrently with the completion of the construction of the market rate units to be constructed on the lots created by the vesting tentative map. H. Under the Regulations, the City Council may wholly or partially waive the requirements of the Regulations and approve alternate methods of compliance with this Chapter if the applicant demonstrates and the City Council finds that such alternate methods meet the purposes of the Regulations. I. Based on 1,043 units, the Developer's inclusionary zoning obligation under the Regulations would be 130 units (1,043 times 0.125 equals 130.375), and it would be permitted to pay fees in lieu of construction to satisfy the obligation as to 52 units (130 times 0.4 equals 52), leaving amust-build obligation of 78 units. J. In the fall of 2005, as means of satisfying its inclusionary housing obligations for the entire 1,043 unit project, Developer proposed an alternative method of compliance that would result in the construction of a total of 130 inclusionary units. K. Specifically, under its initial proposal, Developer would: (a) build 26 integrated units on 4,000 square foot lots, which would be fully compliant with the Regulations, and would in addition be affordable in perpetuity; (b) build 26 1 bedroom, secondary dwelling units on 6,000 square foot lots, which would be rental units and affordable in perpetuity; (c) build an 88-unit off-site affordable project consisting of 2 bedroom, 2 bathroom rental apartments, which would Subsequent Affordable Housing Agreement 2 for the Positano Project ~~ ~~ P zs~ '1 include 78 inclusionary units to satisfy the obligations of the Project; and (d) contribute a $1,000,000 community benefit payment to the City. L. On October 18, 2005, the City Council conceptually approved the Developer's initial proposal and directed City staff to work with the Developer to (a) refine the proposal to include landscaping in the rear yards and using energy efficient measures for the integrated affordable homes to bring down the cost of ownership; (b) work on timing issues and obtain necessary security for the completion of the off-site project; (c) study the feasibility of the integrating the 88 unit off-site project into a larger mixed income project; and (d) incorporate green building principles in the project as practical. M. Subsequently, the City and DREI entered into an initial affordable housing agreement ("the First Phase Agreement"), dated June 5, 2007, for the first phase of the Project, which consists of 247 residential parcels and the location of which is shown on Exhibit 2 ("Part One of the Expanded First Phase"), and that agreement was subsequently amended on June 17, 2008 and is being amended again concurrently with the execution of this Agreement to expand the number of residential units subject to the First Phase Agreement to 416 units and to expand the number of inclusionary units provided by Developer in the First Phase Agreement to 52 inclusionary units. DREI has also conveyed some of the residential units in the Expanded First Phase to Braddock & Logan Group II, L.P., which accordingly has become a party to this Agreement. N. The First Phase Agreement as amended satisfies the affordable housing obligations solely as to the Expanded First Phase (416 residential units), and provides that further development beyond the Expanded First Phase would require a subsequent affordable housing agreement. O. The parties now desire to enter into a subsequent affordable housing agreement, which would apply to that portion of the Property that contains those portions of the Project outside of the Expanded First Phase. P.' Developer, following further discussions with City staff, has now proposed an alternate method to satisfy its 130 unit inclusionary unit obligation for the Project by (a) constructing a total of 130 inclusionary units as follows: (i) 18 integrated inclusionary units, which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), (ii) 34 1-bedroom, secondary dwelling units, which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"), and (iii) 78 off-site affordable rental units; (b) making a community benefit payment prior to issuance of each building permit equal to $958.77 (which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); (c) including rear yard landscaping and energy efficiency measures to reduce the homeowners' cost of living in the 18 integrated inclusionary units; and (d) incorporating green building principles into the 130 inclusionary units. Q. Developer has also received entitlements from the City to build an offsite rental apartment project, which consists of, among other things, 78 Inclusionary Units that are designed Subsequent Affordable Housing Agreement 3 for the Positano Project 31 ~_ y~ -~ to satisfy a portion of the inclusionary housing obligations of the Project ("the Anderson Residential Project"). R. The City Council hereby finds that the alternate method of complying with the Regulations for the Project, as set forth below and in the First Phase Agreement as amended, meets the purposes of the Regulations. NOW, THEREFORE, in satisfaction of the requirements of Chapter 8.68 of the Dublin Municipal Code, in partial satisfaction of condition 2 of the VTM Resolution 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 Agreement shall be defined as set forth in Chapter 8.68 of the Dublin Municipal Code. 2. Developer's Compliance with Affordable Housing Obli ag tion. Developer intends to complete the Project in multiple phases, including a phase that includes 8 model homes. Section 8.68.030 of the Regulations requires that all affordable units in a project be constructed concurrently with a project or phase of a project. The City hereby finds that adherence to the following schedule of construction for the Inclusionary Units would constitute construction of the Inclusionary Units concurrently with the market rate units in the Project as required by Section 8.68.030 of the Regulations. a. Expanded First Phase (Initial 416 Residential Parcels). The First Phase Agreement, as amended, requires that the Developer will satisfy its 52-unit Affordable Housing Obligation for the Expanded First Phase, which is depicted in Exhibit 2, by (a) constructing 52 Inclusionary Units (25 1-bedroom, very low-income, Second Units; 3 4-bedroom, low-income Integrated Units; 9 1-bedroom, low-income, Second Units; and 15 4-bedroom, moderate-income Integrated Units); and (b) making a $958.77 community benefit payment prior to issuance of each building permit in the Expanded First Phase. b. Subsequent Phase (88 Residential Parcels).. Developer has identified an 88-lot portion of the Property, which is depicted in Exhibit 2, that is referred to herein as the "Subsequent Phase." Prior to development on, and approval of subsequent final maps that include, any portion of the Subsequent Phase, Developer shall pay in-lieu fees to fulfill its obligation to construct 11 inclusionary units required in the Subsequent Phase in the amount required by the Regulations and Council Resolution No. 56-02. If the in-lieu fee payment were made today, and through July 1, 2009, the amount would be $.953,040. As required by the Regulations, the entirety of the fee shall be paid at time of issuance of the first building permit outside of the Expanded First Phase. Instead of paying the in-lieu fee payments required by this Subsection, Developer may elect to provide an irrevocable standby letter of credit in an amount equal to the in-lieu fee payment required by this section and in a form acceptable to the City Manager and City Attorney, or such other financial security as the City Manager and City Attorney deem adequate to secure payment of the in-lieu fee required by this section should the Final Phase not be completed as anticipated. Developer hereby agrees that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential parcels in the Expanded First Subsequent Affordable Housing Agreement 4 for the Positano Project -~ ~ 2SD Phase) pursuant to the tentative map approved by the VTM Resolution until such time as it has satisfied the requirements of this Subsection. Final Phase (Remaining 539 Residential Lots). i. Restrictions on Development of Final Phase. In accordance with the Regulations and Condition 2 of the VTM Resolution, development on, and approval of subsequent final maps that include, any portion of the Property beyond the Expanded First Phase and the Subsequent Phase ("the Final Phase") shall require either an amendment to this Agreement or compliance with the following subsections. Developer hereby agrees that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase and the 88 residential parcels in the Subsequent Phase) pursuant to the tentative map approved by the VTM Resolution until such time as it has satisfied the requirements of this Subsection. ii. Conditions for Partial Release of Restrictions. Upon the commencement of site work for the Anderson Residential Project, the restrictions imposed by Subsection 2.c.i above shall be released so as to allow the development of up to 150 additional residential lots beyond the Expanded First Phase and the Subsequent Phase, for a total of 654 residential lots. Upon the commencement of construction of the structures within the Anderson Residential Project, the restrictions imposed by Subsection 2.c.i above shall be released so as to allow the development of up to 250 additional residential lots beyond the First Phase and the Subsequent Phase, for a total of 754 residential lots. iii. Conditions for Release of Remaining Restrictions; Required City Actions Upon Release. Upon approval of occupancy for the Anderson Residential Project and the recordation against the property on which it sits of a regulatory agreement in substantially the form attached hereto as Exhibit 3: (A) This Agreement shall no longer impose any restrictions on Developer's ability to proceed with the development of the portions of the Project outside the Expanded First Phase and the Subsequent Phase. (B) The City shall refund to Developer any monies paid as in- lieu fees, and not previously refunded and/or return or release any letter of credit or financial security provided to City in place of such in-lieu fees, pursuant to Subsection 2.b., with the City retaining any accrued interest. 3. Community Benefit Payment. Developer hereby agrees to make a $958.77 community benefit payment prior to issuance of the building permit for each residential unit (excepting Second Units) in the Subsequent Phase and Final Phase. The community benefit payment required by this Section shall be in addition to the $2,396.93 community benefit payment required by the Development Agreement for the Fallon Village Project between Developer and the City, dated December 20, 2006. Subsequent Affordable Housing Agreement 5 for the Positano Project ~' ~3 op zsn .~ 4. Inclusionary Unit Requirements. a. Unit Bedrooms and Size. The size of the Inclusionary Units within the Anderson Residential Project shall be consistent with the Site Development Review approval, provided however, that minor changes to unit size maybe approved by the Community Development Director through a Site Development Review Waiver. Within the Anderson Residential Project, the developer proposes to provide: 23 very low-income, 2 bedroom, 2 bath units; ii. 161ow-income units, 2 bedroom, 2 bath units; and iii. 39 moderate-income, 2 bedroom, 2 bath units. The City hereby finds that, while this breakdown does not reflect the range of numbers of bedrooms provided in the Project as a whole, as required by Section 8.68.030.E of the Regulations, the Developer's alternate method of compliance meets the purposes of the Regulations. b. Green Building Principles. Construction of the Anderson Residential Project shall incorporate Green Building Principles by meeting the minimum requirements for a GreenPoint Rated home as set forth in the "Multifamily GreenPoint Checklist," attached hereto as Exhibit 4. 5. City Administrative Fee. Prior to the City's execution of either the Resale Agreement or Second Unit Regulatory Agreement, Developer shall pay the City a City Administrative Fee, in an amount to be established from time to time by the City Council and which is currently set at $1,500 per transaction. 6. Term. This Agreement shall be effective until all Inclusionary Units in the Subsequent Phase are constructed, sold, and subjected to resale restrictions approved by the City pursuant to the terms of this Agreement, and the Developer has satisfied the requirements for release of restrictions set out in Subsection 2.c.iii above. 7. Memorandum of Agreement to be Recorded. Developer and City shall execute and acknowledge a Memorandum of this Agreement ("Memorandum") substantially in the form attached hereto as Exhibit 5, and City shall cause the Memorandum to be recorded in the Official Records of Alameda County upon its execution. 8. Agreement Runs with the,Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder (a) is for the benefit of the Property and is a burden upon the Property, (b) runs with the Property, and (c) is Subsequent Affordable Housing Agreement 6 for the Positano Project ~ 2so binding upon each Party and each successive owner during its ownership of the Property or any portion thereof, and shall be a benefit to and a burden upon each Party and the Property hereunder and each other person succeeding to an interest in the Property. 9. Assignments and Transfers. a. Right to Assignn. 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 "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 not be unreasonably withheld or delayed. Any such assignment shall include a specific acknowledgment by the Assignee of the restrictions in Subsection 2.c.i above on development and approval of subsequent final maps within the Final Phase. Notwithstanding the foregoing, provided notice is given as specified in Section 19, no City approval shall be required for any transfer, sale, or assignment of this Agreement, in whole or in part, to any entity or group, a majority interest of which is owned or held under common control with Developer ("Affiliate"), provided that in the event of a partial transfer, Developer has, at the time of the transfer, complied with all obligations of this Agreement then required or provided evidence satisfactory to the City Manager demonstrating that the remaining obligations have been allocated between Developer and Affiliate. b. Approval and Notice of Sale, Transfer or Assi n~ ment. The City Manager shall consider and decide on any transfer, sale or assignment within ten (10) days after Developer's notice thereof, 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 assigned 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 ent. Developer shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to Section 1 I.a of this Agreement, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to Sections 1 l.a and l l .b; and b) such obligations are expressly assumed by Transferee and provided that such Transferee shall be subject to all the provisions hereof. d. Termination of Agreement Upon Sale of Individual Lots to the Public. Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to any lot which has been finally subdivided and, individually (and not in "bulk") sold to the purchaser or user thereof and thereupon and without the execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that any Subsequent Affordable Housing Agreement for the Positano Project 35 o~zsv subsequent Resale Agreement recorded against any individual lot, as provided in Section 6.a.iii., shall continue in full force and effect with regard to such individual lot. 10. 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. 11. 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 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.. 12. 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 (or such longer period as maybe necessary to cure the default, provided that Developer commence the cure within the thirty (30) day period and diligently prosecutes the cure to completion), the City may take any one or more of the following steps: a. By specific performance or other action or proceeding at law or in equity, require the Developer to perform its obligations under this Agreement or enjoin any acts or things which maybe unlawful or in 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. c. If Developer transfers any portion of the project 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 project; and so long as Developer has not otherwise defaulted hereunder, the City shall not seek to exercise any rights and remedies against Developer. 13. Attorneys' Fees. If legal action is necessary to enforce any provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and legal costs. 14. 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. Subsequent Affordable Housing Agreement 8 for the Positano Project J'6~I'2S"~ ,-f In the event that Developer is unable to perform its obligations under Sections 3 and 6 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 Approvals. 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. 15. Corporate Authority. 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. 16. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 Notices required to be given to Developer shall be addressed as follows: Jeff Lawrence Dublin RE Investors Braddock & Logan Group II, L.P. 4155 Blackhawk Plaza Circle, Suite 201 Danville, CA 94506 FAX No. (925) 648-5700 A party may change address by giving notice in writing to the other party and thereafter all notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 17. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit 1 Property Description of the Property Exhibit 2 Diagram of the First Phase, Subsequent Phase, and Final Phase of the Project Subsequent Affordable Housing Agreement for the Positano Project ~,,.. Exhibit 3 Fonn of Regulatory Agreement for Anderson Residential Project Exhibit 4 Multifamily GreenPoint Checklist Exhibit 5 Memorandum of Subsequent Affordable Housing Agreement for the Constriction of Inclusionary Units and the Payment of Fees In-Lieu of Constructing Inclusionary Housing Units IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN By: Joni Pattillo, City Manager Attest: Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney DUBLIN RE INVESTORS, LL,C a California limited liability company By: Braddock and Logan Services, Inc. a California corporation Its Manager Name ~, Its: ,= _.__.__/ BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner 1160194.4 Subsequent Affordable Housing Agreement 10 for the Positano Project °?, ~, .~, 2.5~ }¢ EXHIBIT 1 Property Description of the Property ~..~ ~~ 2s~ 19149-10 10/21 /2008 MW/SK EXHIBIT "A " Page 1 of 4 FALCON VILLAGE PROPERTY ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF DUBLIN, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, BEING ALL OF THE NORTHWEST QUARTER OF SECTION 35 AS DESCRIBED IN SERIES No. 2003-108250, ALAMEDA COUNTY RECORDS, AS WELL AS A PORTION OF THE SOUTH HALF OF SECTION 27 AS SHOWN ON PARCEL MAP 9208 RECORDED IN BOOK 292 OF MAPS PAGES I6-17, ALAMEDA COUNTY RECORDS AND A PORTION OF THE NORTH HALF OF SECTION 34 AS SHOWN ON SAID PARCEL MAP 9208, LYING WITHIN TOWNSHIP 2 SOUTH, RANGE 1 EAST, MOUNT DIABLO BASE AND MERIDIAN, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL 1 BEGINNING AT THE COMMON QUARTER CORNER OF SECTIONS 26 AND 27 AS SHOWN ON SAID PARCEL MAP 9208, ALONG THE SECTION LINE COMMON TO SAID SECTIONS 26 AND 27, SAID SECTION LINE BEING ALSO THE WESTERLY LINE OF THE LANDS OF MUEHLHAUSER, RECORDED IN SERIES No. 2002-097480, ALAMEDA COUNTY RECORDS, SOUTH 00°48'41" WEST 2,642.65 FEET, TO THE COMMON SECTION CORNER OF SECTIONS 26, 27, 34, AND 35; THENCE ALONG THE COMMON SECTION LINE OF SECTIONS 34 AND 35, SAID SECTION LINE BEING ALSO THE WESTERLY LINE OF DUBLIN RE INVESTORS, LLC, SERIES No. 2003-108250, ALAMEDA COUNTY RECORDS, SOUTH 00°44'28" WEST 2,635.93 FEET, TO THE COMMON QUARTER CORNER OF SECTIONS 34 AND 35; THENCE ALONG THE EAST-WEST QUARTER SECTION LINE ENTERING SECTION 34, SAID EAST-WEST QUARTER SECTION LINE BEING ALSO THE NORTHERLY LINE OF FIRST AMERICAN TITLE GUARANTY CO., SERIES No. 98388140, ALAMEDA COUNTY RECORDS, NORTH 89°51'52" WEST 2,651.00 FEET TO THE SOUTHWEST. CORNER OF PARCEL "A" AS SHOWN ON SAID PARCEL MAP 9208; THENCE LEAVING SAID EAST-WEST QUARTER SECTION LINE ALONG THE WESTERLY LINES OF SAID PARCEL "A", THE FOLLOWING SIX (6) COURSES: 1) NORTH 33°45'20" WEST 128.91 FEET; 2). NORTH 22°56'58" WEST 83.13 FEET; 3) NORTH 10°41'42" WEST 61.76 FEET; 4) NORTH 03°58'13" WEST 101.75 FEET; 5) NORTH 03°49'18" EAST 159.00 FEET; AND 6) NORTH 30°35'37" WEST 33.48 FEET; THENCE LEAVING SAID WESTERLY LINE OF SAID PARCEL "A" ALONG THE WESTERLY LINE OF PARCEL "A", PER No. LLA 07-01 SERIES No. 2007-200949, ALAMEDA COUNTY RECORDS THE FOLLOWING THIRTY-NINE (39) COURSES: P:\ 19149UegaIsUORDAN-AGMT-LEGALS\LEGAL-O VERALL.doc ~l a ~ zs-r~ t9149-10 10/21 /2008 MW/SK EXFIIBIT "A" Page 2 of 4 1) SOUTH 66°40'50" WEST 92.39 FEET TO THE BEGINNING OF ANON-TANGENT CURVE TO THE LEFT; 2) ALONG SAID NON-TANGENT CURVE TO THE LEFT, FROM WHICH THE RADIUS POINT BEARS SOUTH 66°40'50" WEST, HAVING A RADIUS OF 1,100.00 FEET; THROUGH A CENTRAL ANGLE OF OS°19'52", FOR AN ARC DISTANCE OF 102.35 FEET; 3) NORTH 28°39'03" WEST 58.57 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT; 4) ALONG SAID CURVE TO THE RIGHT HAVING A RADIUS OF 80.00 FEET, THROUGH A CENTRAL ANGLE OF I 1 °47'55", FOR AN ARC DISTANCE OF 16.47 FEET; TO A POINT OF REVERSE CURVATURE; 5) ALONG SAID REVERSE CURVE HAVING A RADIUS OF 150.00 FEET, THROUGH A CENTRAL ANGLE OF 54°01'09", FOR AN ARC DISTANCE OF 141.42 FEET; 6) NORTH 70°52'17" WEST 6.55 FEET TO THE BEGINNING OF A CURVE TO THE LEFT 7) ALONG SAID CURVE TO THE LEFT HAVING A RADIUS OF 120.00 FEET, THROUGH A CENTRAL ANGLE OF 19°07'43", FOR AN ARC DISTANCE OF 40.06 FEET; 8) NORTH 90°00'00" WEST 189.85 FEET TO THE BEGINNING OF ANON-TANGENT CURVE TO THE LEFT; 9) ALONG SAID NON-TANGENT CURVE TO THE LEFT, FROM WHICH THE RADIUS POINT BEARS SOUTH 89°5724" WEST, HAVING A RADIUS OF 886.00 FEET; THROUGH A CENTRAL ANGLE OF 32°31'05", FOR AN ARC DISTANCE OF 502.85 FEET; 10) NORTH 53°02'51" EAST 195.67 FEET; 11) NORTH 28°07'47" EAST 284.00 FEET; 12) NORTH 49°41'57" EAST 122.85 FEET; TO THE BEGINNING OF A CURVE TO THE RIGHT; 13) ALONG SAID CURVE TO THE RIGHT HAVING A RADIUS OF 42.00 FEET, THROUGH A CENTRAL ANGLE OF 59°26'40", FOR AN ARC DISTANCE OF 43.58 FEET; 14) SOUTH 70°51'23" EAST 49.05 FEET; 15) SOUTH 75°22'09" EAST 45.89 FEET; 16) NORTH 90°00'00" EAST 58.47 FEET; 17) NORTH 69°08'47" EAST 31.73 FEET; 18) NORTH 58°52'28" EAST 119.88 FEET; 19) NORTH 10°4T 11 " WEST 268.63 FEET; 20) NORTH 07°19'39" WEST 250.02 FEET; 21) NORTH 20°43'33" WEST 90.89 FEET; P: \ 191490 egal s V ORDAN-AG MT-LEG A LS\L EG AL-0 VERA LL. doc ~, ~ y~ 19149-10 10/21 /2008 MW/SK EXHIBIT "A" Page 3 of 4 22) NORTH 12°41'35" WEST 30.86 FEET; 23) NORTH 00°44'30" WEST 120.97 FEET; 24) NORTH l7°41'12" WEST 147.19 FEET; 25) NORTH 00°19'22" WEST 106.46 FEET; 26) NORTH 17°50'10" EAST 64.19 FEET; 27) NORTH 02°18'30" EAST 81.36 FEET; 28) NORTH 16°41' 10" EAST 51.40 FEET; 29) NORTH 37°18'42" EAST 65.35 FEET; 30) NORTH 21°23'28" EAST 200.71 FEET; 31) NORTH 71°06'39" WEST 99.04 FEET; 32) NORTH 50°42'23" WEST 48.07 FEET; 33) NORTH 21°32'10" WEST 88.40 FEET; 34) NORTH 14°25' 13" WEST 134.28 FEET; 35) NORTH 10°57'46" WEST 96.03 FEET; 36) NORTH 00°39'24" EAST 140.60 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT; 37) ALONG SAID CURVE TO THE RIGHT HAVING A RADIUS OF 291.02 FEET, THROUGH A CENTRAL ANGLE OF 49°58'40", FOR AN ARC DISTANCE OF 253.85 FEET; 38) NORTH 71°20'52" EAST 82.06 FEET; AND 39) SOUTH 52°39'14" EAST 39.69 FEET; TO THE WESTERLY LINE OF PARCEL "D" AS SHOWN ON SAID PARCEL MAP 9208; THENCE ALONG SAID WESTERLY LINE OF PARCEL "D" THE FOLLOWING TWO (2) COURSES: 1) NORTH 48°46'28" EAST 1,739.56 FEET; 2) NORTH 00°09'11" WEST 235.96 FEET TO A POINT ON THE QUARTER SECTION LINE OF SAID SECTION 27, SAID QUARTER SECTION LINE BEING ALSO THE SOUTHERLY LINE OF ACACIA PARTNERS II, SERIES No. 2005-037868, ALAMEDA COUNTY RECORDS, AND THE NORTHERLY LINE OF SAID PARCEL "D"; THENCE ALONG SAID QUARTER SECTION LINE SOUTH 89°40'26" EAST 1,485.76 FEET; TO SA[D POINT OF BEGINNING. CONTAINING 328.58 ACRES, MORE OR LESS. P:\19149UegalsUORDAN-AG MT-LEGALS\LEGAL-0VERALL.doc `~ . 2 s~ 19149-10 10/21 /2008 MW/SK EXHIBIT "A " Page 4 of 4 PARCEL 2 BEGINNING AT THE COMMON CORNER OF SECTIONS 26, 27, 34, AND 35 ALONG THE SECTION LINE COMMON TO SECTIONS 26 AND 35, SAID SECTION LINE ALSO BEING THE SOUTHERLY LINE OF THE LANDS OF MUEHLHAUSER, RECORDED IN SERIES No. 2002-097480, ALAMEDA COUNTY RECORDS, SOUTH 88°43'28" EAST' 2640.61 FEET TO THE NORTH QUARTER CORNER OF SECTION 35; THENCE ALONG THE NORTH-SOUTH QUARTER SECTION LINE OF SAID SECTION 35, SAID QUARTER SECTION LINE BEING ALSO THE WESTERLY LINE OF ACACIA PARTNERS I, LLC. RECORDED IN SERIES No. 2005-037867, ALAMEDA COUNTY RECORDS, SOUTH 00°55'27" WEST 2636.26 FEET TO THE CENTER QUARTER CORNER OF SECTION 35; THENCE ALONG THE EAST-WEST QUARTER SECTION LINE OF SAID SECTION 35, SAID QUARTER SECTION LINE BEING ALSO THE NORTHERLY LINE OF THE LANDS OF CROAK, RECORDED IN SERIES No. 79-229985, ALAMEDA COUNTY RECORDS; NORTH 88°43'19" WEST 2631.95 FEET TO THE WEST QUARTER CORNER OF SECTION 35; THENCE ALONG THE COMMON SECTION LINE OF SAID SECTIONS 34 AND 35, BEING ALSO THE EASTERLY LINE OF PARCELS "C" AND "D" OF PARCEL MAP 9208 RECORDED IN BOOK 292 OF MAPS PAGES 16-17, ALAMEDA COUNTY RECORDS; NORTH 00°44'09" EAST 2636.21 FEET TO SAID POINT OF BEGINNING. BEARINGS, DISTANCES AND AREA CALCULATION ARE BASED ON RECORD OF SURVEY No. 1675, BOOK 25 RECORD OF SURVEYS PAGES 31-32 ALAMEDA COUNTY RECORDS. CONTAINING 159.54 ACRES, MORE OR LESS. END OF DESCRIPTION. THIS DESCRIPTION IS FOR THE PURPOSE OF AN EXHIBIT ONLY AND DOES NOT CONSTITUTE A LEGAL DESCRIPTION FOR THE PURPOSES OF CREATING NEW DIVISIONS OF LAND OR CONVEYANCE. mAC~aY&somps CIVIL ENGINEERING~LAND PLANNING~LAND SURVEIING 5142 Franklin Drive SuiTe B, Pleasanton, CA. 94588-3355 (9251 225-0690 P:\19149UegaIsUORDAN-AG MT-LEGALS\LEGAL-0VERALL.doc _ / c.~ 2-S~ 7. 2 S., i R. 1 E. NOTE: BEARINGS AND DISTANCES M DAB M WITHOUT AN ASTERISK(*) WERE TAKEN 22 ' 23 FROM RECORD OF SURVEY N0. 1005 ---i--- ACACIA PARTNERS II, LLC. 27 i 2g 5ER1E5 No. 2005-037858 ACACIA PARTNERS i APN 905-0003-014-03 SERIES No. 2006-037303 -, ~ APN 935-O~za-001 `~ ~ POB I _______~_____________________ N89°4026"W 1485.76' i PARCEL 1 -------------------- -------r---- N00°09' 11"W ~ PARCEL 2 ~`~ 235.96' ~ 1 /4 CORNER OF I PM 3327 ,~~~~• ~ SECTIONS 26 8c 27 8K. 293 Plvl P. 14-17 ~ „ _ ''~ ?ARCrL 'D' ~ -____-- ~~~~/ ~ ~ MJEHLHAJSE R ~ - D_S_R.S.D.' ~`$ ~ PM 9208 `~,° 1 5E RIES No. 2002-097480 I %-----------. ~ BK292 M PG16-17 w I APN 906-0003-012 PARCEL F 313.91f AC. TRACT 7253 ~ ' oo ~ *NOTE: BEARINGS AND DISTANCES WITH 13K.253 M P.73-78 ! I PARCEL A ~ ~ AN ASTERISK(*) FOR THE NW 1 /4 OF '~ ~v, No. LLA 07-01 °z I SECTION 35 WERE TAKEN FROM I `~~---'--~~~ • SERIES No. 2007-200949 RECORD OF SURVEY N0. 1675* ~ ,~`_ 14.871 AC. ~ I ~ ~ 27 26 ~N88°43'28"W 2640.61' I D U S L I N I ~ '1PARCEL 13' S .~ ----- ._---- I RANCH ; t = CO ~ , 85 POB PARCEL 2 ~____- ~~ ~ ~, v~ o r I DUBLIN RE INVESTORS, LLC 1 ~- ; ~, r., I :- SERIES No. 2003-108250 ~> ~ ,~ I~..,~ !~ ' / ~'-- ~ L„ °i ~ ROS N0. 1675 ~° I ~ ;~ a ~ ~ ~ ' ~ BH25 R.O.S. PG31-32 ~ 1- ~ o ,' ~r---- ~.' ~ I ° ' ° APN 905-0002-003 N 1 rn 1 ~:, ~~./% ~ i w w 159.541 AC. w w o ao ~ ~ w---- ~ I o NW I /4 SECTION 35 NI ~ ° ~ PARCEL 'C' ~ , ~ T. Z S. R. 1 E. ~ ~ ~ z ~ ~+;`1 PARCEL 'A' `~ o o M.D•8. ~ M• o ~ a_ rn z ~ z I z o ~> w o_ ~. ~ 1/4 CORNER OF ?I a ~ a ~~ ; SECTIONS 34 & 35 ~ a N89°51_52"W 2651.00' _ _ ~ _ #N88°43' 19"W 2631.95' I ~--~-----~----- F1RST AMiRICAN 71TI ~ I CROAK // GUARANTY CO. i SERIES No. 79-229985 S~RI~S No. 913333140 , APN 905-0002-002 APN 935-0027-005 ; APN 905-0002-002-01 iJORDAN RANCHI o' 500' 1000' 2000 EXHIBIT i PAGE 1 OF 1 FALCON VILLAGE PROPERTY CITY OF DUBLIN COUNTY OF ALANEDA CALIFORNIA LEGEND: -- BOUNDARY LINE ----------- EXISTING LOT UNE POB POINT OF BEGINNING mAC~Y~somps CIVIL ENCINEERING~IAND PLANNING~LAND SURVEYING Pleosonton, CA (925) - 225-0690 DRAWN I DJ-TE I SCALE I JOB NO. AAIB/JTA1 10-21-08 1"=1000' 19319.010 EXHIBIT 2 Diagram of the First Phase, the Subsequent Phase, and the Final Phase of the Project ~5 ~ ~~ O. z, O s ay ~ 9~yy O ~Q~' L ~r~r w o N 0 c ~~ _ , ~z` ¢ waQ~ ~a~Q~ ~ ~~~ ~ O U 3234 ~ OU~~ O~^~~.~W o ^ 1 ~ ~ ~~ ~ ~ ~ Ca ~„ . Q Q Q ' ~' 0 a ~_" i I ' w w ~ I ~ ~ ~, c o - .~ ~ ~ a" ~ ., a~ 0.. G. ~ m ' , `~. ~ id Y O ~ ~ ^ ~ ~ I , '~~ ' O Y O ~ YO Or O ,~ ~ , ~r 1I .• .J ', ,. t ~~ `. ,. ~ -'~,'~ I ~~ ~~' ~_ --.. '~' '``~ ~ -~, J \, ~\ 0 a° i m M ~~~ 2~ EXHIBIT 3 Form of Regulatory Agreement for Anderson Residential Project ~ ~ 2-~ DRAFT 10/15/2908 RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder's use AFFORDABLE HOUSING REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS by and between Dublin RE Investors, L.L.C., a California limited liability company. and the City of Dublin DRAFT 10/15/2008 ~/8 ~~ This Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (this "Agreement") is entered into effective as of , 2008 ("Effective Date") by and between the City of Dublin, a municipal corporation ("City") and Dublin RE Investors, L.L.C., a California limited liability company ("Developer"). City and Developer are hereinafter collectively referred to as the "Parties." Recitals A. Chapter 8.68 of the Dublin Zoning Ordinance ("Inclusionary Zoning Ordinance") requires that developments consisting of 20 or more residential units must include a specified percentage of units that are subject to affordability restrictions set forth in a binding agreement recorded against the property prior to the issuance of building permits. The Regulations were adopted pursuant to Strategy I.B. 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. B. The City of Dublin adopted the Inclusionary Zoning Ordinance 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 Ordinance is to achieve a balanced community with housing available at all income levels. C. Accordingly, the Inclusionary Zoning Ordinance generally requires that residential projects with 20 or more units/lots contain at least 12.5% very low-, low- and moderate-income units/lots. The Inclusionary Zoning Ordinance requires that the units be constructed in the following proportions: 30% very low-income, 20% low-income, and 50% moderate income. In lieu of constructing 40% of the inclusionary units that the Inclusionary Zoning Ordinance would otherwise require, the Inclusionary Zoning Ordinance authorize developers to pay a fee currently set by the City through June 30, 2009 at $91,916 per unit required but not built. If fees are paid in lieu of construction, developers are still required to construct 60% of the obligation. D. Developer is the owner of certain real property in the City of Dublin generally located east of Fallon Road, and Developer and its successor desire to construct a residential project on the Property that consists of 1,043 for-sale units ("Positano Project"), which is subject to the Inclusionary Zoning Ordinance. F. Based on 1,043 units, .the Developer's obligation under the Inclusionary Zoning Ordinance is 130 units (1,043 times 0.125 equals 130.375), and Developer is permitted to pay fees in lieu of construction to satisfy the obligation as to 52 units (130 times 0.4 equals 52), leaving amust-build obligation of 78 inclusionary units. G. Pursuant to the Inclusionary Zoning Ordinance, the City Council may wholly or partially waive the requirements of the Inclusionary Zoning Ordinance and approve alternate methods of compliance. 1153511-3 2 Anderson Project Regulatory Agreement DRAFT 10/15/2008 ~9 2~ H. Developer has proposed an alternate method to satisfy its 130 unit inclusionary unit obligation for the Positano Project by, among other things, constructing 78 off-site affordable rental units, and this Agreement concerns those units. I. Developer has received entitlements from the City to build a rental apartment project ("Project" and sometimes referred to as "Anderson Project") on certain real property located at in the City of Dublin and more particularly described on Exhibit A attached hereto and incorporated herein by this reference ("Property"). The Project consists of twenty-six (26) market-rate rental units (one of which is a manager's unit), seventy-eight (78) affordable restricted units that are designed to satisfy a portion of the inclusionary housing obligations of the Positano Project and four (4) affordable restricted units that satisfy the inclusionary housing obligations of the Project. The Anderson Project constitutes the 78 off-site affordable rental units proposed by Developer to satisfy a portion of its affordable housing obligations for the Positano Project. J. The Parties have entered into a Subsequent Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units ("Positano Agreement") to set forth the terms and conditions for Developer satisfying the inclusionary housing obligations for the Positano Project. K. Pursuant to the Positano Agreement, and to satisfy the inclusionary housing obligations as to the Anderson Project, the Parties have agreed to enter into and record this Agreement in order to satisfy the conditions described in the foregoing Recitals. The purpose of this Agreement is to regulate and restrict the occupancy and rents of the Project's Restricted Units (defined below) for the benefit of the Project occupants. The covenants in this Agreement are intended to run with the land and be binding on Developer and its successors and assigns for the full term of this Agreement. NOW, THEREFORE, in satisfaction of the requirements of Chapter 8.68 of the Dublin Municipal Code and the Positano Agreement, and in consideration of the City's approval of the Positano Project and the Anderson Project, Developer and City for themselves and their respective successors and assigns hereby agree as follows: 1. Definitions and Interpretations. The following terms have the meanings set forth in this Section wherever used in this Agreement or the attached exhibits. "Area Median Income" or "AMI" means the area median income for Alameda County, California, adjusted for household size, determined periodically by the California Department of Housing and Community Development ("HCD") as published in Section 6932 of Title 25 of the California Code of Regulations ("Regulations") or successor provision published pursuant to California Health and Safety Code Section 50093(c). If HCD ceases to make such determination, Area Median Income shall be the median income applicable to Alameda County, with adjustments for household size, 1153511-3 3 Anderson Project Regulatory Agreement DRAFT 10/15/2008 ~~~ as determined from time to time by the U.S. Department of Housing and Urban Development ("HUD") pursuant to the United States Housing Act of 1937 as amended, or such other method of median income calculation applicable to the City of Dublin that HUD may hereafter adopt in connection with such Act. "Eligible Household" means a household whose income upon initial occupancy does not exceed the maximum income level for Very-Low Income, Low-Income or Moderate-income, as applicable, as specified in Section 2 and Exhibit B and who is otherwise eligible to rent a Restricted Unit. "Low-Income" means an annual gross income that is less than or equal to the lesser of (i) maximum income level for households of "Lower Income" as determined periodically by HCD on the basis of gross annual household income, adjusted for actual household size and other factors and published in the Regulations for Alameda County, or (ii) 80% of AMI, adjusted for household size as published in the Regulations. If HCD should cease making such determination, "Low-Income" shall be defined as not greater than 80% of Area Median Income, adjusted for household size and other factors as determined by HUD. If both HCD and HUD cease to make such determinations, City in its reasonable discretion may designate another definition of "Low-Income" used by any other federal or state agency so long as such definition is no more restrictive than that set forth herein. "Moderate-Income" means an annual gross income that is less than or equal to the lesser of (i) the maximum income level for households of "Moderate Income" as determined periodically by HCD on the basis of gross annual household income, adjusted for actual household size and other factors and published in the Regulations for Alameda County, or (ii) 120% of Area Median Income, adjusted for household size as published in the Regulations. If HCD should cease making such determination, "Moderate-Income" shall be defined as not greater than 120% of Area Median Income, adjusted for household size and other factors as determined by HUD. If both HCD and HUD cease to make such determinations, City in its reasonable discretion may designate another definition of "Moderate-Income" used by any other federal or state agency so long as such definition is no more restrictive than that set forth herein. "Project" means the development and construction of 108 two-bedroom units on the Property, which consists of 26 market-rate units (including a manager's unit) and 82 Restricted Units, as defined below. "Property" means that certain real property located at in the City of Dublin and more particularly described in Exhibit A attached hereto and incorporated by this reference. "Qualifying Rent" means a monthly rent, less a utility allowance as specified by the Housing Authority of Alameda County, that shall not exceed: (i) for units that are restricted for rental to Very Low-Income households, one-twelfth of thirty percent (30%) of fifty percent (50%) of AMI, adjusted for household size, as published in the 1153511-3 4 Anderson Project Regulatory Agreement DRAFT 10/15/2008 ~I 2~~ Regulations for Alameda County, (ii) for units that are restricted for rental to Low- Income households, one-twelfth of thirty percent (30%) of sixty percent (60%) of AMI, adjusted for household size, and (iii) for units that are restricted for rental to Moderate- Income households, a monthly rent which does not exceed one-twelfth of thirty percent (30%) of sixty percent (110%) of AMI, adjusted for household size. "Restricted Unit" means atwo-bedroom dwelling unit that is reserved for occupancy at a Qualifying Rent by an Eligible Household in accordance with and as set forth in Section 2 and Exhibit B. "Transfer" means any sale, agreement to sell, assignment, encumbrance, hypothecation, conveyance, license, lease (other than the leasing of commercial space or individual residential units within the Project) or transfer of the whole or any part of Developer's interest in the Property or the Project, or any part thereof, or change in the ownership structure of Developer, including the sale of any general or limited membership interests, or the removal of any general member "Very Low-Income" means an annual gross income that is less than or equal to the lesser of (i) the maximum income level for households of "Very Low Income" as determined periodically by HCD on the basis of gross annual household income, adjusted for actual household size and other factors and published in the Regulations for Alameda County, or (ii) 50% of Area Median Income, adjusted for household size as published in the Regulations. If HCD should cease making such determination, "Very Low-Income" shall be defined as not greater than 50% of Area Median Income, adjusted for household size and other factors as determined by HUD. If both HCD and HUD cease to make such determinations, City in its reasonable discretion may designate another definition of "Very Low-Income" used by any other federal or state agency so long as such definition is no more restrictive than that set forth herein. 2. Developer's Compliance with Affordable Housing Obligation. Developer hereby covenants and agrees, for itself and its successors and assigns, that at least eighty-two (82) dwelling units within the Project shall be Restricted Units so as to satisfy all of Developer's obligations under the Inclusionary Zoning Ordinance and requirements set forth herein. Developer represents and warrants that it has not entered into any agreement that would restrict or compromise its ability to comply with the occupancy and affordability restrictions set forth in this Agreement, and Developer covenants that it shall not enter into any agreement that is inconsistent with such restrictions without the express written consent of City. Notwithstanding the foregoing or anything to the contrary contained herein, if the terms of financing for the Project require greater affordability restrictions than those imposed hereby, the requirements of such other financing shall prevail for the term thereof. 2.1 Occupancy of Restricted Units. In perpetuity, occupancy of the Restricted Units shall be limited to Eligible Households in the number and in accordance with the income limitations set forth in Exhibit B attached hereto and incorporated by this reference. The income levels and other qualifications of applicants for 1153511-3 5 Anderson Project Regulatory Agreement DRAFT 10/15/2008 ~o? ~~ ~ Restricted Units shall be certified pursuant to Section 3 of this Agreement. In the event that recertification of tenant incomes indicates that the number of Restricted Units actually occupied by Eligible Households falls below the number reserved for each respective income group as specified in Exhibit B, Developer shall rectify the condition by renting the next available Unit to Eligible Household(s) from that income group until the required income mix is achieved. Notwithstanding the foregoing, no tenant qualifying for a Restricted Unit shall be denied continued occupancy of a unit in the Project because, after admission, such tenant's adjusted income increases to exceed the qualifying limit for such tenant. If a tenant who at initial occupancy qualified as Very Low, Low- or Moderate-Income, such tenant shall be treated as continuing to be of Very-Low, Low- or Moderate-Income, as applicable, so long as the tenant's income does not exceed 140% of the applicable income limit. Such disqualified tenant (i.e., one whose income exceeds 140% of the applicable income .limit) shall be deemed to qualify as a Very Low-, Low-, or Moderate- Income tenant, as applicable, provided that the next available vacant unit of comparable or smaller size as the unit with the disqualified tenant is rented to a tenant who qualifies at the applicable income level, after which the unit with the disqualified tenant will no longer qualify as a Restricted Unit. 2.2 Rents restricted for Affordable Units. Rents for Restricted Units shall be .limited to Qualifying Rents. Notwithstanding the foregoing, no tenant qualifying for a Restricted Unit shall be denied continued occupancy of a unit in the Project because, after admission, such tenant's adjusted income increases to exceed the qualifying limit for such Restricted Unit. A tenant who at initial occupancy qualifies for Moderate Income shall be treated as continuing to be of Moderate Income, as applicable, provided that the tenant's income does not exceed 140% of the applicable income limit. 2.3 Inclusionary Unit Design, Location, and Size. The Restricted Units shall be of the same general design and appearance as the other market-rate units in the Project approved by the Planning Commission and the City. Consistent with Section 8.68.030.E of the Inclusionary Zoning Ordinance, the Restricted Units shall initially be dispersed within the Project and shall initially be located as specified in a diagram approved by the City prior to completion of construction of the Project. The Diagram of Location of Inclusionary Units, attached hereto as Exhibit C, shows the location of the Restricted Units as proposed by the Developer. Tenants of Restricted Units shall have access to all common facilities of the Project equal to that of tenants of dwelling units in the Project which are not Restricted Units. 2.4 No Condominium Conversion. Developer shall not convert the Property or the Project to condominium or cooperative ownership or sell condominium or cooperative conversion rights to the Property or the Project during the term of this Agreement, other than in conformity with the City's Condominium Conversion Regulations set forth in Chapter 8.54 of .the Dublin Zoning Ordinance. 1153511-3 6 Anderson Project Regulatory Agreement DRAFT 10/15/2008 ~~ 2.5 Non-Discrimination; Compliance with Fair Housing Laws. There shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, sex, sexual orientation, marital status, familial status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or the Project, nor shall Developer or any person claiming under or through Developer establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Project. Developer shall each ensure that language prohibiting such party or its successors and assigns with respect to the Project and the Property. Developer shall comply with state and federal fair housing laws in the marketing and rental or the units in the Project. 3. Reporting Requirements. 3.1. Tenant Certification. Developer or its authorized agent shall obtain from each household prior to initial occupancy of each Restricted Unit, and on every anniversary thereafter, written documentation containing all of the following in such format and with such supporting documentation as City may reasonably require: (a) Number of people in the household; and (b) Total household income. Developer shall retain such written documentation for not less than three (3) years, and upon City's request, shall make the originals available for inspection by City and shall provide copies of such certificates to City. Developer or its authorized agent shall require each Eligible Household to verify such written documentation. 3.2. Annual Report; Inspections. Developer shall submit an annual report ("Annual Report") to the City in conformity with the requirements of Section 8.68.050B of the Inclusionary Zoning Ordinance, together with a certification that the Project is in compliance with the requirements of this Agreement. The Annual Report shall, at a minimum, include the following information for each Affordable Unit in the Project: (i) unit number; (ii) number of bedrooms; (iii) current rent and other charges; (iv) dates of any vacancies during the previous year; (v) number of people residing in the unit; (vi) total household income of residents; (vii) documentation of source of household income; and (viii) the ethnicity of the household (only if required by Project financing sources). Upon City's request, Developer shall include with the Annual Report, an income recertification for each household, documentation verifying tenant eligibility, and such additional information as City may reasonably request from time to time in order to show compliance with this Agreement. The Annual Report shall conform to the format described in Exhibit 8 of the City's "Layperson's Guide to the Inclusionary Zoning Ordinance Regulations," more particularly described in Exhibit D attached hereto and incorporated herein by reference. Developer shall permit representatives of City to enter and inspect the Property and the Project during 2~ 1153511-3 7 Anderson Project Regulatory Agreement DRAFT 10/15~/2t008 2~ ~`7 reasonable business hours in order to monitor compliance with this Agreement upon 24 hours advance notice of such visit to Developer or to Developer's management agent. 4. Term of Agreement. perpetuity. 4.1 Term of Restrictions. This Agreement shall remain in effect in 4.2 Effectiveness Succeeds Conveyance of Property This Agreement shall remain effective and fully binding for the full term hereof regardless of any sale, assignment, transfer, or conveyance of the Property or the Project, unless this Agreement is terminated earlier by City in a recorded writing. 4.3 Reconveyance. Upon the termination of this Agreement, the Parties to execute and record appropriate instruments to release and discharge the terms of this Agreement; provided, however, the execution and recordation of such instruments shall not be necessary or a prerequisite to the termination of this Agreement in accordance with its terms. 5. Binding Upon Successors: Covenants to Run with the Land. Developer hereby subjects its interest in the Property and the Project to the covenants and restrictions set forth in this Agreement. The City and Developer hereby declare their express intent that the covenants and restrictions set forth herein shall be deemed covenants running with the land and shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of Developer and City, regardless of any sale, assignment, conveyance or transfer of the Property, the Project or any part thereof or interest therein. Any successor-in-interest to Developer, including without limitation any purchaser, transferee or lessee of the Property or the Project (other than the tenants of the individual dwelling units within the Project) shall be subject to all of the duties and obligations imposed hereby for the full term of this Agreement. Each and every contract, deed, ground lease or other instrument affecting or conveying the Property or the Project or any part thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, restrictions, duties and obligations set forth herein, regardless of whether such covenants, restrictions, duties and obligations are set forth in such contract, deed, ground lease or other instrument. If any such contract, deed, ground lease or other instrument has been executed prior to the date hereof, Developer hereby covenants to obtain and deliver to City an instrument in recordable form signed by the parties to such contract, deed, ground lease or other instrument pursuant to which such parties acknowledge and accept this Agreement and agree to be bound hereby. Developer agrees for itself and for its successors that in the event that a court of competent jurisdiction determines that the covenants herein do not run with the land, such covenants shall be enforced as equitable servitudes against the Property and the Project in favor of City. 1153511-3 8 Anderson Project Regulatory Agreement DRAFT 10/15/2008 2C~'"'~ 5~ The Parties hereby declare that is their understanding and intent that the burden of the covenants set forth herein touch and concern the land in that they restrict the use of the Property. The Parties further declare that it is their understanding that the benefit of such covenants touch and concern the land by enhancing and increasing the enjoyment and use of the Project by households of moderate-income. The covenants, conditions and restrictions hereof shall apply uniformly to the Property in order to establish and carry out a common plan for the use, development and improvement of the Property. 6. Property Management; Repair and Maintenance; Marketing. 6.1 Management Responsibilities. Developer shall be responsible for all management functions with respect to the Property and the Project, including without limitation the selection of tenants, certification and recertification of household income and eligibility, evictions, collection of rents and deposits, maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. Except as City may otherwise agree in writing, City shall have no responsibility for management or maintenance of the Property or the Project. 6.2 Management Entity. City shall have the right to review and approve the qualifications of the management entity proposed by Developer for the Project. The City hereby approves as the initial management entity for the Project. The contracting of management services to a management entity shall not relieve Developer of its primary responsibility for proper performance of management duties. 6.3 Repair, Maintenance and Security. Throughout the term of this Agreement, Developer shall at its own expense, maintain the Property and the Project in good physical condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living conditions in conformity with all applicable state, federal, and local laws, ordinances, codes, and regulations. Without limiting the foregoing, Developer agrees to maintain the Project and the Property (including without limitation, the residential units, common meeting rooms, common areas, landscaping, driveways and walkways) in a condition free of all waste, nuisance, debris, unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and shall take all reasonable steps to prevent the same from occurring on the Property or at the Project. Developer shall prevent and/or rectify any physical deterioration of the Property and the Project and shall make all repairs, renewals and replacements necessary to keep the Property and the improvements located thereon in good condition and repair. Developer shall provide adequate security services for occupants of the Project. 6.3.1 City's Right to Perform Maintenance. In the event that Developer breaches any of the covenants contained in Section 6.3, and such default continues for a period of ten (10) days after written notice from City (with respect to graffiti, debris, and waste material) or thirty (30) days after written notice from City (with respect to landscaping, building improvements and general maintenance), then City, in 1153511-3 9 Anderson Project Regulatory Agreement DRAFT 10/15///2008 b addition to any other remedy it may have under this Agreement or at law or in equity, shall have the right, but not the obligation, to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and the landscaped areas on the Property. All costs expended by City in connection with the foregoing, shalt constitute an indebtedness secured by the Deed of Trust, and shall be paid by Developer to City upon demand. All such sums remaining unpaid thirty (30) days following delivery of City's invoice therefor shall bear interest at the rate of 10% per annum. 6.4 Inspection. Developer shall permit representatives of City to enter upon and inspect the Property and the Project during reasonable business hours upon twenty-four (24) hours advance notice to Developer or Developer's management agent. 6.5 Marketing and Management Plan. As soon as practicable following completion of Project construction, Developer shall rent the Restricted Units to Eligible Households. Developer shall give priority for Restricted Units to Eligible Households in accordance with the Marketing and Management Plan described below and the selection criteria specified in Paragraph D of Section 8.68.050 of the City's Inclusionary Zoning Ordinance, unless compliance with such criteria is prohibited by state or federal sources of financing for the Project or state or federal law. Not later than 180 calendar days following the issuance of the first building permit for the Project, Developer shall submit for City review and approval, a plan for marketing and managing the Property ("Marketing and Management Plan"). The Marketing and Management Plan shall address in detail how Developer plans to market the Restricted Units to prospective Eligible Households in accordance with fair housing laws and this Agreement, Developer's tenant selection criteria, and how Developer plans to certify the eligibility of Eligible Households. The Plan shall also describe the management team and shall address how the Developer and the management entity plan to manage and maintain the Property and the Project. The Plan shall include the proposed management agreement and the form of rental agreement that Developer proposes to enter into with Project tenants. Developer shall abide by the terms of the Marketing and Management Plan in marketing, managing, and maintaining the Property and the Project, and throughout the term of this Agreement, shall submit proposed modifications to City for its review and approval. 6.6 Approval of Amendments. If City has not responded to any submission of the Management and Marketing Plan, the proposed management entity, or a proposed amendment or change to any of the foregoing within 30 days following City's receipt of such plan, proposal or amendment, the plan, proposal or amendment shall be deemed approved by City. 6.7 Fees, Taxes, and Other Levies. Developer shall be responsible for payment of all fees, assessments, taxes, charges, liens and levies, including without limitation possessory interest taxes, if applicable, imposed by any public authority or utility company with respect to the Property or the Project, and shalt pay such charges 1153511-3 10 Anderson Project Regulatory Agreement DRAFT 10/15/2008 . ~~ 250 prior to delinquency. However, Developer shall not be required to pay any such charge so long as (a) Developer is contesting such charge in good faith and by appropriate proceedings, (b) Developer maintains reserves adequate to pay any contested liabilities, and (c) on final determination of the proceeding or contest, Developer immediately pays or discharges any decision or judgment rendered against it, together with all costs, charges and interest. 6.8 Insurance Coverage. Throughout the term of this Agreement Developer shall maintain at Developer's expense comprehensive general liability insurance issued by a carrier licensed by the State of California with a Best's rating of not less than A:VII providing aggregate limits of not less than Two Million Dollars ($2,000,000), providing coverage for bodily injury, death and property damage, naming the Indemnified Parties (as defined in Section 10) as additional insureds and providing for notice to City prior to cancellation or reduction in coverage. Prior to issuance of building permits for the Project, Developer shall provide City with evidence of such coverage in such form as City may reasonably request. 6.9 Property Damage or Destruction. If any part of the Project is damaged or destroyed, Developer shall repair or restore the same, consistent with the occupancy and rent restriction requirements set forth in this Agreement. Such work shall be commenced within 120 days after the damage or loss occurs and shall be completed within one year thereafter, provided that insurance proceeds are available to be applied to such repairs or restoration within such period and the repair or restoration is financially feasible. During such time that lenders or low-income housing tax credit investors providing financing for the Project impose requirements that differ from the requirements of this Section the requirements of such lenders and investors shall prevail. 7. Recordation; No Subordination. This Agreement shall be recorded in the Official Records of Alameda County. Developer hereby represents, warrants and covenants that, absent the written consent of City, this Agreement shall not be subordinated in priority to any lien (other than those pertaining to taxes or assessments), encumbrance, or other interest in the Property or the Project. If at the time this Agreement is recorded, any interest, lien, or encumbrance has been recorded against the Project in position superior to this Agreement, upon the request of City, Developer hereby covenants and agrees to promptly undertake all action necessary to clear such matter from title or to subordinate such interest to this Agreement consistent with the intent of and in accordance with this Section, and to provide such evidence thereof as City may reasonably request. 8. Restrictions on Transfer and Encumbrance. 8.1 Restrictions on Transfer. (a) During the term of this Agreement, except as permitted pursuant to subparagraph (b) below, Developer shall not make or permit the occurrence 1153511-3 11 Anderson Project Regulatory Agreement DRAFT 10/15/2008 ~~ ~~~ of any Transfer of the Project or the Property without the prior written consent of the City. (b) City shall not unreasonably withhold its consent to the Transfer of the Project, provided that (i) the Project is and shall continue to be operated in compliance with this Agreement; (ii) the transferee expressly assumes all obligations of Developer imposed by this Agreement; (iii) the transferee executes all documents reasonably requested by the City with respect to the assumption of the Developer's obligations under this Agreement; and (iv) either (1) the transferee has at least three years' experience in the ownership, operation and management of low-income senior rental housing projects of similar size to that of the Project, without any record of material violations of nondiscrimination provisions or other state or federal laws or regulations applicable to such projects, or (2) the transferee agrees to retain a property management firm with the experience and record described in subclause (1 ). 8.2 Encumbrances. Developer agrees to use best efforts to ensure that any deed of trust secured by the Project shall contain each of the following provisions: (i) the holder of such deed of trust shall use its best efforts to provide to City a copy of any notice of default issued to Developer concurrently with provision of such notice to Developer (provided however, the failure to do so shall not impair such holder's rights and remedies); and (ii) City shall have the reasonable right, but not the obligation, to cure any default by Developer within the same period of time provided to Developer for such cure, extended by an additional thirty (30) days. Developer agrees to provide to City a copy of any notice of default Developer receives from any Third- Party Lender within three (3) business days following Developer's receipt thereof. 8.3 Mortgagee Protection. No violation of any provision contained herein shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon all or any portion of the Project or the Property, and the purchaser at any trustee's sale or foreclosure sale shall not be liable for any violation of any provision hereof occurring prior to the acquisition of title by such purchaser. Such purchaser shall be bound by and subject to this Agreement from and after such trustee's sale or foreclosure sale. Promptly upon determining that a violation of this Agreement has occurred, City shall give written notice to the holders of record of any mortgages or deeds of trust encumbering the Project or the Property that such violation has occurred. 9. Default and Remedies. 9.1 Events of Default. The occurrence of any one or more of the following events shall constitute an event of default hereunder ("Event of Default"): (a) The occurrence of a Transfer in violation of Section 8 hereof, and the failure of Developer to rescind such Transfer within 30 days following. written notice from City or such longer period as City may agree upon in writing. 1153511-3 12 Anderson Project Regulatory Agreement DRAFT 10/15/2008y~~ (b) Developer's failure to maintain insurance on the Property and the Project as required hereunder, and the failure of Developer to cure such default within 10 days. (c) Subject to Developer's right to contest the following charges, Developer's failure to pay taxes or assessments due on the Property or the Project or failure to pay any other charge that may result in a lien on the Property or the Project, and Developer's failure to cure such default within 10 days. (d) Developer's default in the performance of any term, provision or covenant under this Agreement or under any other City Document (other than an obligation enumerated in this Subsection 9.1), and unless such provision specifies a shorter cure period for such default, the continuation of such default for ten (10) days in the event of a monetary default or thirty (30) days in the event of a non- monetarydefault following the date upon which City shall have given written notice of the default to Developer, or if the nature of any such non-monetary default is such that it cannot be cured within 30 days, Developer's failure to commence to cure the default within thirty (30) days and thereafter prosecute the curing of such default with due diligence and in good faith, but in no event longer than 120 days from receipt of the notice of default. 9.2 Remedies. If within the applicable cure period, Developer fails to cure a default or fails to commence to cure and diligently pursue completion of a cure, as applicable, or if a cure is not possible, City may proceed with any of the following remedies: (a) Bring an action for equitable relief seeking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking declaratory relief; (b) For violations of obligations with respect to rents for Restricted Units, impose as liquidated damages a charge in an amount equal to the actual amount collected in excess of the Qualifying Rent; (c) Pursue any other remedy allowed at law or in equity. Each of the remedies provided herein is cumulative and not exclusive. The City may exercise from time to time any rights and remedies available to it under applicable law or in equity, in addition to, and not in lieu of, any rights and remedies expressly provided in this Agreement. 10. Indemnification. Notwithstanding the insurance coverage required hereunder, Developer shall defend, indemnify and hold the City and its officials, officers, .directors, employees, and agents (collectively, the "Indemnified Parties") harmless from and against any and all losses, damages, liabilities, claims, demands, judgments, actions, court costs, and legal or other expenses (including reasonable attorneys' fees) which an 1153511-3 13 Anderson Project Regulatory Agreement DRAFT 10/15/2008 ~o~ 2L- 2- 5~ Indemnified ,Party may incur as a result of (1) Developer s failure to perform any obligation as and when required by this Agreement; (2) any failure of Developer's representations or warranties to be true and complete in all material respects when made; or (3) any act or omission by Developer, or any of Developer's contractors, subcontractors, agents, employees, licensees or suppliers with respect to the Project or the Property, except to the extent that such losses are caused by the gross negligence or willful misconduct of such Indemnified Party. Developer shall pay immediately upon an Indemnified Party's demand any amounts owing under the indemnity provided under this Section. The duty of Developer to indemnify includes the duty to defend the Indemnified Party in any court action, administrative action, or other proceeding brought by any third party arising in connection with the Project or the Property with counsel reasonably approved by City. Developer's duty to indemnify the Indemnified Parties shall survive the expiration or earlier termination of this Agreement. 11. Miscellaneous. 11.1 Amendments. This Agreement may be amended or modified only by a written instrument signed by both Parties. 11.2 No Waiver. Any waiver by City of any term or provision of this Agreement must be in writing. No waiver shall be implied from any delay or failure by City to take action on any breach or default hereunder or to pursue any remedy allowed under this Agreement or applicable law. No failure or delay by City at any time to require strict performance by Developer of any provision of this Agreement or to exercise any election contained herein or any right, power or remedy hereunder shall be construed as a waiver of any other provision or any succeeding breach of the same or any other provision hereof or a relinquishment for the future of such election. 11.3 Notices. Except as otherwise .specified herein, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered upon receipt if delivery is confirmed by a return receipt; (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; (iv) facsimile transmission, in which case notice shall be deemed. delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly 1153511-3 14 Anderson Project Regulatory Agreement DRAFT 10/15/2008 I ~~ liv r d b first-class or certified mail orb overni ht delive or b a transmission de e e y y g ry, () 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 if it is received after 5:00 p.m. recipient's time or on a nonbusiness day. City: City of Dublin 100 Civic Plaza Dublin, CA 94568 Attention: City Manager Facsimile: (925) 833-6651 Developer: Dublin RE Investors 4155 Blackhawk Plaza. Circle, Suite 201 Danville, CA 94506 Attention: Jeff Lawrence Facsimile: (925) 648-5700 11.4 Further Assurances. The Parties shall execute, acknowledge and deliver to the other such other documents and instruments, and take such other actions, as either shall reasonably request as may be necessary to carry out the intent of this Agreement. 11.5 Parties Not Co-Ventures. Nothing in this Agreement is intended to or shall establish the Parties as partners, co-venturers, or principal and agent with one another. 11.6 Action by the Agency. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the Agency is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City Manager or by any person who shall have been designated by the City Manager, without further approval by the governing board of the Agency. 11.7 Non-Liability of City and City Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Developer or any successor in interest, in the event of any default or breach by the City, or for any amount of money which may become due to Developer or its successor or for any obligation of the City under this Agreement. 11.8 Headings; Construction. The headings of the sections and paragraphs of this Agreement are for convenience only and shall not be used to interpret this Agreement. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any Party. 11.9 of this Agreement. Time is of the Essence. Time is of the essence in the performance 1153511-3 15 Anderson Project Regulatory Agreement DRAFT 10/15/2008 ~ ~? 2-~~ 11.10 Governing Law. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of Alameda County, California or in the Federal District Court for the Northern District of California. 11.11 Attorneys' Fees and Costs. If any legal or administrative action is brought to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to recover all reasonable attorneys' fees and costs incurred in such action. 11.12 Severability. If any provision of this Agreement is held invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby. 11.13 Entire Agreement; Exhibits. This Agreement, together with the Agency Documents contains the entire agreement of Parties with respect to the subject matter hereof, and supersedes all prior oral or written agreements between the Parties with respect thereto. The exhibits attached hereto are incorporated herein by this reference. 11.14 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. (EXECUTION PAGE FOLLOWSI 1153511-3 16 Anderson Project Regulatory Agreement DRAFT 1~ 5/2008 ~ ,,, IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN DUBLIN RE INVESTORS, LLC a California limited liability company By: Joni Pattillo, City Manager Attest: Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney 1153511-3 17 By: Braddock and Logan Services, Inc. a California corporation Its Manager By: Name: Its: Anderson Project Regulatory Agreement DRAFT 10/15/2008 t/U ~ f ~ EXHIBIT A Property Description DRAFT 10/15/2008 ~5 2~ Exhibit B OCCUPANCY AND RENT RESTRICTIONS Restricted Unit Number of Maximum Initial Maximum Type Required Income Limit* Affordable Rent Restricted Units 2-Bedroom 24 VLI 50% of AMI 30% x 50% of AMI 17 LI 80% of AMI 30% x 60% of AMI 41 MOD 120% of AMI 30% x 110% of AMI Total Restricted 82 Units Total 26 Unrestricted Units Total Project Units 108 AMI =Area Median Income VLI =Very Low-Income LI = Low Income MOD =Moderate-Income *Maximum Initial Income Limit: Maximum income for a household to qualify for initial occupancy in the specified Restricted Unit is established annually by HCD in the Regulations (Section 6932 of Title 25 of the California Code of Regulations) and may differ from the stated percentage of AMI. DRAFT 10/15/2008 ~ ~ ~~~ EXHIBIT C Diagram of Location of Inclusionary Units DRAFT 10/15/2008 ~~ ~~ EXHIBIT D ANNUAL REPORT FORM (Attach Form.) 1153511.2 ~~~ EXHIBIT 4 Multifamily GreenPoint Checklist Multifamily GreenPoint Checklist The GreenPoint Rated checklist tracks green features incorporated into the home. The recommended minimum requirements for a green home are: Earn a total of 50 points or more; obtain the following minimum points per category: Community (6), Energy (30), Indoor Air Quality/Health (5), Resources (6), and Water (3); and meet the prerequisites B.1.a (50% construction waste diversion), A.8 (exceed Title 24 requirements by 15%), C.10.a (3-year subcontractor guarantee and 20-year manufacturer warranty for shingle roofing), and F.1 (incorporate Green Points checklist in blueprints). Build It Green is anon-profit organization providing the GreenPoint Rated program as a public service. Build It Green encourages local governments to leverage program resources to support voluntary, market-based programs and strategies. The green building practices listed below are described in greater detail in the Multifamily Green Building Guidelines, available at www.builditgreen.org/greenpoint-rated/guidelines Enter Total Conditioned Floor Area of the Project: 10,000 Enter Total Non-Residential Floor Area of Project: Percent of Project Dedicated to Residential Use 100% ~9 ~s~ ~-~ Build It ~i Current Point Total 0 l~J L~1 L~1 ~J ~J ': ~ ~ j t ? ~ ENTER PROJECT NAME ~ i E 3 E rn = ° ar o c ~ aNi ~ ~ ~ Q U W Q. $$ 1. Infill Sites ^ a. Project is Located Within an Urban Growth Boundary & Avoids Environmentally Sensitive Sites ^ b. Project Includes the Redevelopment of At Least One Existing Building c. Housing Density of 15 Units Per Acre or More (1 pt for every 5 u/a) Enter Project Density Number (In Units Per Acre) '~' d. Locate Within Existing Community that has Sewer Line 8 Utilities in Place ^ e. Project Redevelops a Brownfield Site or is Designated a Redevelopment Area by a City f. Site has Pedestrian Access Within Y: Mile to Neighborhood Services (1 Pt for 5 Or More, 2 Pts for 10 Or More): ^ 1) Bank ~ 2) Place of Worship ^ 3) Full Scale Grocery/Supermarket ^ 4) Day Care Q 5) Cleaners ^ 6) Fire Station ^ 7) Hair Care ~ 8) Hardware ^ 9) Laundry ^ t0) Library ^ 11) Medical/Dental ^ 12) Senior Care Facility ^ 13) Public Park ^ 14) Pharmacy ^ 15) Post Office ^ 16) Restaurant ^ 17) School ^ 18) After School Programs ^ 19) Commercial Office ^ 20) Community Center ^ 21) TheaterlEntertainment ^ 22) Convenience Store Where Meat & Produce are Sold. g. Proximity to Public Transit Development is Located Within: j 1/4 Mile of One Planned or Current Bus Line Stop 1/4 Mile of Two or More Planned or Current Bus Line Stops i 1 1l2 Mile of a Commuter TrainlLight Rail Transit System 1 h. Reduced Parking Capacity: __~__.__ Less than 1.5 Parking Spaces Per Unit 1 Less than 1.0 Parking Spaces Per Unit 1 2. Mixed-Use Developments. a. At (east 2% of Development Floorspace Supports Mixed Use (Non-Residential Tenants) 1 b. Half of Above Non-Residential Floorspace is Dedicated to Neighborhood Services 1 3. Building Placement & Orientation __.__-,.,__ __ __ __ _ j a. Protect Soil & Existing Plants 8 Trees 1 a. uesign for Walking ~ t3icycling ^ a. Sidewalks Are Physically Separated from Roadways & Are 5 Feet Wide ^ b. Traffic Calming Strategies Are Installed by the Developer ^ c. Provide Dedicated, Covered & Secure Bicycle Storage for 15% of Residents ^ d. Provide Secure Bicycle Storage for 5% of Non-Residential Tenant Employees & Visitors 5.5ocial Gathering Places ^ a. Outdoor Gathering Places for Residents (Average of 50 sf Per Unit Or More) ^ b. Outdoor Gathering Places Provide Natural Elements (For compact sites only 6. Design for Safety and Natural Surveillance MF GreenPoint Checklist 2005 Edition v.2 1 1 1 j l 1 ~ 1 I Page 1 of 8 ' 1 ~. m ............... .............. _.._... :ENTER PROJECT NAME ^ a. All Main Entrances to the Building and Site are Prominent and Visible from the Street ^ b. Residence Entries Have Views to Callers (Windows or Double Peep Holes) & Can Be Seen By Neighbors MF GreenPoint Checklist 2005 Edition v.2 '~ ~ E E E a U w ....,.. _.,.w.,.._..... .__._._..mim. 1 _ 1 ~b ~?- 2S'D L ~ {..._. .,.....~..... = o ar ? Q ~' ~° ! __». ~ ~~„ _. _.e _ __ Page 2 of 8 ENTER PROJECT NAME ~~ ~~~ _~~~ _ _ _ r ~ L N C ~ N ~ ~ " = o d v w ~ a ~ 3 _ __m _.___ _.~.._.... ~--____~ 7. Landscaping ----.--.__. ~..._.,___._~.__. _.....~-___ Check here if the landscape area is <10% of the total site area. Projects with <10% landscape area can cnly check up to 3 boxes in this section. .___._ W _,. _ . _ _ __..__. a. No Plant Species will Require Shearing 1 b. No plantings are Listed on the Invasive Plant Inventory by the California Invasive Plant Council , 1 8. Building Performance Exceeds Title 24 by at least 15%-Required Enter the Percent Above the 2005 Version of Trtle 24 for Residential and Non-Residential Portions of the Project. a. Residences: 2 Points for Every 1 % Above 2005 T24 b. Non-Residential Spaces: 2 Points for Every 1%Above 2005 T24 c. Specify Drought-tolerant California Natives, Mediterranean or Other Appropriate Species d. Create Drought Resistant Soils: i. Mulch All Planting Beds to a Depth of 2 Inches or Greater as Per Local Ordinance ii. Amend with 1 Inch of Compost or as per Soil Analysis to Reach 3.5% Soil Organic Matter e. Design & Install High-Efficiency Irrigation System i. Specify Smart (Weather-Based) Irrigation Controllers ii. Specify Drip, Bubblers or Low-Flow Sprinklers for All Non Turf Landscape Areas f. Group Plants by Water Needs (Hydrozones) in Planting Plans & Identify Hydrozones on Irrigation Plans g. Minimize Turf in Landscape Installed by Builder i. Do Not Specify Turf on Slopes Exceeding 10% or in Areas Less Than 8 Feet Wide ii. Less Than 33% of All Landscaped Area is Specified as Turf AND All Turf has Water Requirement <= To Tall Fescue ( 9. Gool Site ^ a. At least 30% of the Site Includes Cool Site Techniques 10. Adaptable Buildings a. Include Universal Design Principles in Units ^ 50%ofUnits ^ 80%ofUnits { ^ b. LivelWork Units Include A Dedicated Commercial Entrance 1 1 1 i n. Anoraaomry i a. A Percentage of Units are Dedicated to Households Making 80% or Less of AMI ^ 10%ofAll Units ------ --.-.--.--._ ^ 20% 1 _ ._..- ~ 1 f ^ 30% 1 ^ 50%orMore ~ 1 ^ b. Development Includes Multiple Bedroom Units (At least 1 Unit with 3BR or More at or Less Than 80%AMI) 2 ~ ~ t. v~qr~. `:~ Z7 t T° ., ..... r ''4 s K S~: :x~ ~s~ ~. ... « ... >~ `•~a 5. •• c :%.`.~ -Iir. ~~ 4L ~ N ~, t10t'...~:..:. ~ ' ~, ~' ~ ~ ~ I . . . , .... ~ .... .u _, . ~' 1. Construction 8 Demolition Waste Management .. .. . A.N. a txL ~.x r..v .... ~. . .~....: :' ~ Divert a Portion of all Construction & Demolition Waste: ~ _ -~ ', ^ a. Required: Divert 50% ~ ` ~~ ~ R ` ^ b. Divert 65% 2 I I ^ _ _.__ c. Divert 80% or more ___....~ _.__ _...__ _ __ _ 2 _ _ 2. Construction Material Efficiencies ^ a. Lumber is Delivered Pre-Cut from Supplier (80% or More of Total. Board Feet) b. Components of the Project Are Pre-Assembled Off-Site & Delivered to the Project ^ 25% of Total Square Footage ^ 50% of Total Square Footage ^ 75% of Total Square Footage or More 3. Construction Indoor Air Quality (IAQ) Management Plan ^ a. An IAO Management Plan is Written 8 Followed for the Project t Z ' 2 2 2 . 'Itt _cas ..~..... v. ~: .....Ca..~'k .~.%. 1. Recycled Aggregate ~^ a Minimum 25% Recycled Aggregate (Crushed Concrete) for Fill, Backfill & Other Uses 3 1 _ _~ _.. _.,.~.,_.._~_..__._.._._._._, _.. _a.__..~. __..__._.~ ._ _ _ _...,___. _...__..-..._~_~,_ _,_,-,.,_ ., _ , 2. Recycled Flyash in Concrete j a. Flyash or Slag is Used to Displace a Portion of Portland Cement in Concrete _ ~_ _ ~_ _ . ~ ^ 20% I ^ 30%or More j 1 j .~ _... _ _._ _ W.._ ~ ._. __~ _._.__._,_ 1 1 _ _._ 1 1 ____.. 1 _-. _ ____..._____ . _._~ ___f MF GreenPoint Checklist 2005 Edition v.2 Page 3 of 8 ENTER PROJECT NAME 3. FSC-Certified Wood for Framing Lumber a. FSC-Certified Wood for a Percentage of All Dimensional Studs: ^ 40% ^ 70% b. FSC-Certified Panel Products for a Percentage of All Sheathing (OSB 8 Plywood): ^ 40% ^ 70% 4 Engineered Lumber or Steel Studs, Joists, Headers & Beams ^ a. 90% or More of All Floor & Ceiling Joists ^ b. 90%or More of All Studs ^ c. 90% or More of All Headers 8 Beams 5 Optimal Value Engineering Framing ^ a. Studs at 24" Centers on Top Floor Exterior Walls 8Jor All Interior Walls ^ b. Door & Window Headers Sized for Load ^ c. Use Only Jack 8 Cripple Studs Required for Load 6. Steel Framing ^ a. Mitigate Thermal Bridging by Installing Exterior Insulation (At Least 1-Inch of Rigid Foam) ~ 7. Structural Insulated Panels (SIPs) Or Other Solid Wall Systems a. SIPS Or Other Solid Wall Systems are Used for 80% of All: ^ Floors 'i ^ .Walls ~ ^ Roofs ! ~.._. ___.._ r 8. Raised Heel Roof Trusses ^ a. 75% of All Roof Trusses Have Raised Heels 9. Insulation ^ a. All Ceiling, Wall & Floorlnsulation is 01350 Certified OR Contains No Added Formaldehyde ~ ~ 1 ^ b. All Ceiling, Wall & Floor Insulation Has a Recycled Content of 50% or More _.. _._ 10. Durable Roofing Options ^ a. Required: No Shingle Roofing OR All Shingle Roofing Has 3-Yr Subcontractor Guarantee & 20-Yr Manufacturer Warranty ^ b. All Sloped Roofing Materials Carry a 40-Year Manufacturer Warranty 11. Moisture Shedding & Mold Avoidance ^ a. Building(s) Include a Definitive Drainage Plane Under Siding ^ b. ENERGY STAR Bathroom Fans are Supplied in All Bathrooms, Are Exhausted to the Outdoors & Are Equipped with ^ c. A Minimum of 80% of Kitchen Range Hoods Are Vented to the Exterior 1 1 R 1 4 1 ' 12. Green Roofs j a. A Portion of the LowSlope Roof Area is Covered By A Vegetated or "Green" Roof ^ 25% ____.__.._ I 2 2 ^ 50%orMore 2 2 t. Passive Solar Heating ~ ^ a. Orientation: At Least 40% of the Units Face Directly South Z ^ b. Shading On All South-Facing Windows Allow Sunlight to Penetrate in Winter, Not in Summer 1 i-I r Thnrm~l AA~cr At I e~et Fno/ of }ho Flnnr Ares flirorHv Rnhinrl Gidh_Corinn 1Alinrlnwc is ~,txef..n ~ -i ; 2. Radiant Hydronic Space Heating ^ a. Install Radiant Hydronic Space Heating for IAO purposes (No Forced Air) in All Residences 3. Solar Water Heating ~ ~~ ~ ~ ~~-~~~~~~~~~~~~~~~ ^ a. Pre-Plumb for Solar Hot Water ^ b. Install Solar Hot Water System for Preheating DHW -_._~_ _.._. __.._ _ _.._.._..__ ._.____.____. ~ V -___ .. ____.. ..._ __-_________ . _._ _ 4. Air Conditioning with Advanced Refrigerants ^ a. Install Air Conditioning with Non-HCFC Refrigerants 1 _...____ 5. Advanced Ventilation Practices i Perform the Following Practices in Residences: ^ a. Infiltration Testing by a C-HERS Rater for Envelope Sealing 8 Reduced Infiltration ^ b. Operable Windows or Skylights Are Placed To Induce Cross Ventilation (At Least One Room In 80% of Units) ^ c. Ceiling Fans in Every Bedroom & Living Room OR Whole House Fan is Used _..._. __ 6. Garage Ventilation { ^ a Garage Ventilation Fans Are Controlled by Carbon Monoxide Sensors (Passive Ventilation Does Not Count) 1 4 MF GreenPoint Checklist 2005 Edition v.2 Page 4 of 8 __ _ ~ __a ___~_ ___j ___ a-. ._~ .._ L __ ~ , ENTER PROJECT NAME ~ ? '' I ~ ' ~ C7 , ~~ _ _ U w Q € ~ 7. Low-Mercury Lamps ^ a. Low-Mercury Products Are Installed Wherever Linear Fluorescent Lamps Are Used _._.. ~~ ~ -1 W ~.._.~ ^ b. Low-Mercury Products Are Installed Wherever Compact Fluorescent Lamps Are Used 2 8. Light Pollution Reduction ^ a. Exterior Luminaires Emit No Light Above Horizontal OR Are Dark Sky Certified ~ 1 ; ^ b. Control light Trespass Onto Neighboring Areas Through Appropriate Fixture Selection & Placement ' 1 9.Onsite Electricity Generation a. Pre-Wire for Photovoltaics & Plan for Space (Clear Areas on Roof 8 in Mechanical Room) ~~..~ 1 b. Install Photovoltaics to Offset a Percent of the Project's Total Estimated Electricity Demand 10% 20% 30% or more c. Educational Display is Provided in a Viewable Public Area 10. Elevators ~ ~~ ^ a. Gearless Elevators Are Installed 11. ENERGY STAR®Appliances a. Install ENERGY STAR Refrigerators in Afl Locations ^ ENERGY STAR-Qualified ^ ACEEE-Listed Refrigerators b. Install ENERGY STAR Dishwashers in All Locations ^ All Dishwashers Are ENERGY STAR-qualified ^ Residential-grade Dishwashers Use No More than 6.5 Gallons Per Cycle ^ c. Install ENERGY STAR Clothes Washers In All Locations ^ d. Install Ventless Natural Gas Clothes Dryers in Residences 12. Central Laundry ^ a. Central Laundry Facilities Are Provided for All Occupants ^ 13. Water-Efficient Fixtures a. All Showerheads Use 2.0 Gallons Per Minute (gpm) or Less b. High-Efficiency Toilets Use 1.28 gpf or Less or Are Dual Flush In All Residences In All Non-Residential Areas c. Install High Efficiency Urinals (0.5 gpf or less) or No-Water Urinals Wherever Urinals Are Specified: Average Flush rate is 0.5 gallons per flush or less Average flush rate is 0.1 gallons per flush or less d. Flow Limiters Or Flow Control Valves Are Installed on All Faucets Residences: Kitchen - 2.0 gpm or less Non-Residential Areas: Kitchen - 2.0 gpm or less Residences: Bathroom Faucets-1.5 gpm or less Non-Residential Areas: Bathroom Faucets -1.5 gpm or less e. Non-Residential Areas: Install Pre-Rinse Spray Valves in Commercial Kitchens -1.6 gpm or less 1 1 3 3 1 1 1 __ 1 0 0 1 1 0 0 1 14. Source Water Efficiency ^ a. Use Recycled Water for Landscape Irrigation or to Flush Toilets/Urinals ~~-_. .__Z ^ b. Use Captured Rainwater for Landscape Irrigation or to Flush 5% of Toilets BJor Urinals ~ q ^ c. Water is Submetered for Each Residential Unit &Non-Residential Tenant 4 .. .»«..u-....t. .. .. » v -- ... I`LL. ~v • ':,.~ . .L "~' x~ e ma%SPY.S.f.. .~i~i.. .\ai. ~ 1. Construction Indoor Air Quality Management ^ a. Perform a 2-Week Whole Building Flush-Out Prior to Occupancy 1 ~ - 2. Entryways ^ a. Provide Permanent Walk-Off Mats and Shoe Storage at All Home Entrances ; ___ _- 1 ~~~ ^ b Permanent Walk-Off Systems Are Provided at All Main Building Entrances 8 In Common Areas ? 1 3. Recycling & Waste Collection j ^ a. Residences: Provide Built-In Recycling Center In Each Unit ~ Z MF GreenPoint Checklist 2005 Edition v.2 - Page 5 of 8 ~ ENTER PROJECT NAME _.. 4. Use LowlNo-VOC Paints 8 Coatings a. Low-VOC Interior Paints (<50 gpl VOCs (Flat) and <150 gpl VOCs (Non-Flat)) ^ In All Residences ^ In All Non-Residential Areas: b. Zero-VOC: InteriorPaints (<5 gpl VOCs (Flat)) ^ In All Residences ^ In All Non-Residential Areas: c. Wood Coatings Meet the Green Seal Standards for Low-VOCs ^ In All Residences ^ In All Non-Residential Areas: d. Wood Stains Meet the Green Seal Standards for Low-VOCs ^ In All Residences ^ In All Non-Residential Areas: 5. Use Recycled Content Exterior Paint ^ a. Use Recycled Content Paint on 50% of All Exteriors ~~ zs~ _. «_ 3 r in C j d ~ j( T s N ~ i °' ~ w ~ o ~ ~ ~ A v w€ a a 3 1 0 1 0 2 0 _2 _0 1 6. Low•voG construction Adhesives a. Use Low-VOC Construction Adhesives (<70 gpl VOCs) for All Adhesives 1 7. Environmentally Preferable Materials for Interior Finish Use Environmentally Preferable Materials for Interior Finish: A) FSC-Certified Wood, B) Reclaimed Lumber, C) Rapidly Renewable D) Recycled-Content or E) Finger-Jointed a. Residences: At Least 50% of Each Material: ^ i. Cabinets .__.- 1 ^ ii. Interior Trim 1 ' ^ iii. Shelving 1 ^ iv. Doors ~ ^ v. Countertops 1 I b. Non-Residential Areas: At Least 50% of Each Material: ^ i. Cabinets -~---~ __.._ - _~ 0 ^ ii. Interior Trim ' 0 i ^ ~ iii. Shelving i 0 ' ^ iv. Doors ' 0 ~ ^ --... v. Countertops ~ ..". _.___ __._ __ ____ __ _ _..__ _. _~__ _ _ __ 0 _ . _ ~ _ - _. _ 8. Reduce Formaldeh de m Interior Finish Materials y _ ~___ __ . _ _ ~ ..._ Reduce Formaldehyde in Interior Finish Materials (Section 01350) for At Least 50% of Each Material Below. I a. Residences: ^ i. Cabinets ~ ~" ~ -"1 --" - J ^ ii. Interior Trim ~ 1 ^ iii. Shelving ~ 1 ^ iv. Subfloor 1 - b. Non-Residential Areas: e _ ~ :_._ _.~ _.~ ^ i. Cabinets _ __.._- ____.... ^ ii. Interior Trim ? ~" ^ i iii. Shelving a ^ rv. Subfloor 0 9. Environmentally Preferable Flooring " _,...- Use Environmentally Preferable Flooring: A) FSC-Certified or Reclaimed Wood, B) Rapidly Renewable Flooring Materials, C) Recycled-Content Ceramic Tiles, D) Exposed Concrete as Finished Floor or E) Recycled-Content Carpet. Note: Flooring Adhesives Must Have <50 gpl VOCs. a. Residences: i. Minimum 15% of Floor Area .- _-_ _.- 1 ^ ii. Minimum 30% of Floor Area 1 ^ iii. Minimum 50% of Floor Area ? 1 ^ iv. Minimum 75% of Floor Area t 1 b. Non-Residential Areas: _ . ~ ~ _ _. _._._ .. ._ ^ i. Minimum 15% of Floor Area ~ ~ ~~ ~- ~"°~ 0 ^ ii. Minimum 30% of Floor Area ~ ^ ... ni.Minimum50%ofFloorArea ~ ^ iv. Minimum 75% of Floor Area I 0 10. Low-Emitting Flooring ^ a. Residences: Flooring Meets Section 01350 or CRI Green Label Plus Requirements (50% Minimum) ~ 1 ~ "" MF GreenPoint Checklist 2005 Edition v.2 Page 6 of 8 ~~ 8 2~ ~~ ~ ~ w ~ ~ ENTER PROJECT NAME ~ ~ ~ _ o w o ~ v a 3 ~ 1 w € a ~ ? ~ ^ b. Non-Residential Areas: Flooring Meets Section 01350 or CRI Green Label Plus Requirements (50% Minimum) MF GreenPoint Checklist 2005 Edition v.2 Page 7 of 8 ~! __ _m _.~_ _ _ _ _. _ ______ _ __ _ _ _ ~__ ___ ______ ~___ w _ -~ ~ Zs _. ~~ €~ ENTER PROJECT NAME ~ ; ~ _ o O ~ C ~ ~ y to Q 11. Durable Cabinets Install Durable Cabinets in All: ^ a. Residences ~ ~ ~ _ ~ ~ -~ ~""`~- _T._.. ' 1 i b. Non-Residential Areas 0 12. Furniture 8 Outdoor Play Structures ^ a. Play Structures & Surfaces Have an Overall Average Recycled Content Greater Than 20% ..__~~__-- __ 1 __._._...._. ^ b. Environmentally Preferable Exterior Site Furnishings 1 ^ ___ ~. c. At Least 25% of All newly Supplied Interior Furniture has Environmentally Preferable Attributes _..__. _ ~ . ~ 1 { 13. Vandalism Deterrence [~ a. Project Includes Vandalism Resistant Finishes and Strategies 1 t Incorporate GreenPoint Checklist m Blueprints ~ a. Required: Incorporate GreenPoint Checklist in Blueprints y ~ 2.Operations & Maintenance Manuals ^ a. Provide 0&M Manual to Building Maintenance Staff 1 i ^ b. Provide 0&M Manual to Occupants _._. _ .._.__ __ _~.. ._- ..~ __ I 1 t 1 . ~..., ~. 3. Transit Options ~....____... ___,_ -. _.______ j ^ a. Residents Are Offered Free or Discounted Transit Passes 2 __~ . _._ _.~ ~- ___-~ 4. Educational Signage ^ a; Educational Signage Highlighting & Explaining the Project's Green Features is Included 1 5. Vandalism Management Plan "~ ^ a Project Includes a Vandalism Management Plan for Dealing with Disturbances Post-Occupancy 1 6 Innovation List innovative measures that meet the green building objectives of the Multifamily Guidelines. Enter up to a 4 Points in each category Points will be evaluated b local tunsdiction or GreenPoint rater . y Innovation in Community: Enter up to 4 Points at left. Enter description here Innovation in Energy: Enter up to 4 Points at left. Enter description here Innovation in IAQ/Health: Enter up to 4 Points at left. Enter description here Innovation in Resources: Enter up to 4 Points at left. Enter description here Innovation in Water: Enter up to 4 Points at left. Enter description here Summa ~_ ___..._ _._..... ~ _. ~. ~ __._ ~ ~..._-____ _m. ~ ~ -- _ _ _._ . Points Achieved from Specific Categories Current Point Total Project has not yet met the recommended minimum requirements - Total Project Score of At Least 50 Points - Minimum points in specific categories: Community (6), Energy (30), IAQ/Health (5), Resources (6), Water (3) - Required measures 8.1a, C.IOa, and/or F.la MF GreenPoint Checklist 2005 Edition v.2 Page 8 of 8 77 ~~~ EXHIBIT 5 Memorandum of Affordable Housing Agreement for the Construction of Inclusionary Units and the Payment of Fees In-Lieu of Constructing Inclusionary Housing Units ~s ~ 2 s~ RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder's use MEMORANDUM OF SUBSEQUENT AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. Subsequent and Final Phases (627 Residential Lots) of the Positano Project This Memorandum of Subsequent Affordable Housing Agreement for the Construction of Inclusionary Units and the Payment of Fees In-Lieu of Constructing Inclusionary Units (this "Memorandum") is entered into on this _ day of , 2008, by and between the City of Dublin, a municipal corporation (hereafter "City") and Dublin RE Investors, L.L.C., a California limited liability company, and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). 1. Pursuant to the Subsequent Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units, dated as of , 2008, by and between City and Developer (the "Agreement"), the Parties have set forth their respective obligations with respect to the provision of affordable units on lands presently owned by Developer, a portion of the 1043 residential parcel Positano Project (the "Project") ,and more specifically described in Exhibit A (the "Property"). These obligations run with the land. 2.. The City and the Developer are parties to a certain Affordable Housing Agreement that sets out the specific obligations for the construction of Inclusionary Units and payment of fees in lieu thereof in conjunction with the a 416 residential parcel phase of the Project ("the Initial Agreement"). The Initial Agreement anticipates the parties entering into a subsequent affordable housing agreement setting forth the manner in which the Regulations will be complied with for the remainder of the Project. 3. The Agreement sets out the specific obligations for the construction of Inclusionary Units and payment of fees in lieu thereof in conjunction with a subsequent 627 residential parcel phase ~~ ~~5~ of the development of the Project. The Agreement sets out separate obligations fora 88 residential parcel phase ("the Subsequent Phase") and a 539 residential parcel phase ("the Final Phase"). The Agreement also obligates the Developer to make a Community Benefit Payment, as described in the Agreement, prior to issuance of building permits for each residential unit (excepting Second Units) within the Subsequent Phase and the Final Phase. The Agreement prohibits development development on, and the City's approval of subsequent final maps that include, any portion of the Property in the Subsequent Phase and the Final Phase, until the Developer's obligations set forth in the Agreement are satisfied. The Agreement also contains the Developer's covenant, on behalf of itself, and its successors and assigns, that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase) until such time as it has satisfied its obligations under the Agreement, as to, respectively, the Subsequent Phase and the Final Phase.. 3. Developer and City have executed and recorded this instrument to give notice of the Agreement, and the respective rights and obligations of Developer and City. The unrecorded Subsequent Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees in Lieu of Constructing Inclusionary Housing Units is incorporated by reference in its entirety in this Memorandum. 4. This Memorandum shall bind and inure to the benefit of the parties and their respective heirs, successors and assigns, subject however to restrictions set forth in the Agreement regarding assignment. [EXECUTION PAGE FOLLOWS] S 6 ~,,p IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN By: Joni Pattillo, City Manager Attest: Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney DUBLIN RE INVESTORS, LLC a California limited liability company By: Braddock and Logan Services, Inc. a California corporation Its Manager By: Name: Its: BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner By: Name: Its: ~~