HomeMy WebLinkAboutReso 206-08 Positano Subsequent Phase AgmtRESOLUTION N0.206 - 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 OS-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 6271ots 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 deporting fees in-lieu of constructing units, or substitute security therefore, until the off-
site affordable units on Anderson are completed, and the construction of 78 2 bedroom/2 bathroom
Reso No. 206-08, Adopted 11/4/08, Item 6.4 Page 1 of 2
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
WHEREAS, a Staff Report was submitted to the City Council for consideration of this request;
and
WHEREAS, the City Council did hold a public hearing on said agreement on November 4, 2008;
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 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
~, 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 $1,000,000 Community Benefit Payment, meet the purposes of Inclusionary Zoning Regulations.
NOW, THEREFORE, BE IT FURTHER RESOLVED that the City Council of the City of
Dublin does hereby approve the Subsequent Affordable Housing Agreement between Dublin RE
Investors, LLC, and the City of Dublin for the remaining 627 lots of the Positano development as
described in Exhibit A.
BE IT FURTHER RESOLVED that the City Manager is authorized and directed to execute the
Subsequent Affordable Housing Agreement.
PASSED, APPROVED AND ADOPTED this 4~' day of November, 2008, by the following vote:
AYES: Councilmembers Hildenbrand, Oravetz, Sbranti, and Scholz and Mayor Lockhart
NOES: None
ABSENT: None
ABSTAIN: None
ATTE$,T:
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City Clerk
Mayor
Reso No. 206-08, Adopted 11/4/08, Item 6.4 Page 2 of 2
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SUBSEQUENT AFFORDABLE HOUSING AGREEMENT
FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES
IN LIEU OF CONSTRUCTING INCLUSIONARY ROUSING 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 into achieve_a balanced
community with housing available at all income levels..
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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's to create 1,043 residential
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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..
L 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
for the: Positano Project
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 provided 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
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• 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 iri 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 Obligation. 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 (Initia1416 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, ~lovv-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 if will not assert the
provisions of Government Code section 66458 to require the City to approve additional phased
fmal maps (beyond those for the creation of the 416 residential parcels in the Expanded First
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Phase) pursuant to the tentative map approved by the. VTM Resolution until such time as it.has '
satisfied the requirements of this Subsection. ,
c. 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 Proj ect between
Developer and the City,. dated December 20, 2006.
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Subsequent Affordable Housing Agreement
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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:
i. 23 very low-income, 2 bedroom, 2 bath units;
ii. 161ow-income units, 2 bedroom, 2 bath units; and
iii. 39moderate-income, 2 bedroom, 2 bath units.
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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
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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 Assign. 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 Assignment. 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 Assignment. Developer shall be released from
any obligations hereunder sold, transferred or assigned to a Transferee pursuant to Section l l.a
of this Agreement, provided that: a) such sale, transfer or assignment has been approved by the
City Manager pursuant to Sections l l.a and 1 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 Unon Sale of Individual Lots to the Public.
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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
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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 o~ 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 may be 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 may be unlawful or in violation of the rights of the City hereunder.
b. Take such other action at lavv 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. Attorne, sY '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.
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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
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Exhibit 3' Form of Regulatory Agreement for Anderson Residential- Project
. Exhibit 4 Multifamily GreenPoint Checklist .
Exhibit 5 Memorandum of Subsequent Affordable Housing Agreement for the
Construction 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 DUBLIN RE INVESTORS, LLC
" a California limited liability company
By: Braddock and Logan Services, Inc.
By: a California corporation
Joni Pattillo, City Manager Its Manager
Attest:
- _--;v .
" Name:
Caroline Soto, City Clerk ~~ Its:
Approved as to form BRADDOCIC & LOGAN GROUP II, L.P.
A California limited partnership
By: Braddock and Logan Services, Inc.
a California corporation
John Bakker, City Attorney Its General Partner
1160194.4
• Subsequent Affordable Housing Agreement
10 for the Positano Project
EXHIBIT 1
Property Description of the Property
2s~
•i
•i
. ~s~
19149-10
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MW/SK
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°49'18" 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:
•
EXHIBIT "A"
Page 1 of 4
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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 ?:
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°0743", 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°57'24" 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°02'5.1" EAST 195.67 FEET;
11) NORTH 28°0747" 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:\19149VegalsUORDAN-AGMT-LEGALS\LEGAL-0VERALL.doc
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19149-10
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• 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°5746" 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 5.2°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 DF
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:\19149UegalsUORDAN-AGMT-LEGALS\LEGAL-0VERALL.doc
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19149-10
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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 COUN'T'Y 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 SURVEIING
5142 Franklin Drive Suite B, Pleasanton, CA. 94588-3355
(925) 225-0690
P:\19149UegalsVORDAN-AGMT-LEGALS\L);GAL-0VERALL.doc
~f ~3 c~P, 2ST~
•
•
7. 2 5.., R. 1 1+.
NOTE: BEARINGS AND DISTANCES M u ~ B M
WITHOUT AN ASTERISK(+) WERE TAKEN 22 , 23 ~ ' -
FROM RECORD OF ~ SURVEY N0. 1005 ---~--- ACACIA PAR7NrR5 11, I_I-C,
27 ; 28 5ERL5 N~. 2005-03785a
ACACIA PARTNERS ~ APN 905-OO~J3-014-03
SERIES No. 2005-037358 ~ -'
~ APN 9a5-D~za-DQ1 `~" POB
_______~__.___________________ N89°40_26"W 1485.76' i PARCEL 1
-r----
PARCEL 2 ~~ N00°099161"IN i 1/4 CORNER OF ~
PM x327 ~~^,; SECTIONS 26 & 27
l;K. 29a PM P. 14-17 ~, ~
„-_ •' PARCEL 'D'
-____-- a~~~/ ~ ~ MUEHLHAUSER ~
D.S.R.S.D.~~ ~D~~ PM 9208 `~,°I 5cRIES No. 2002-09743D ~
~~"~:---------- ., BK292 M PG16-17 w I APN 905-0003-012
PARCEL F 313.911 AC.
TRACT 7253 ~' ~~ *NOTE: BEARINGS AND DISTANCES. WITH
SK.253 M P.73-731 I, PARCEL A g, ~ AN ASTERISK(+) FOR THE NW 1/4 OF
`~ ~~., No. LLA 07=01 °z I SECTION 35 WERE TAKEN FROM. '
`~.------'~~ ~ .SERIES No. 2007-200949 RECORD OF SURVEY N0. 1675* i'
~ ,~ `- 14.671 AC. ~
I
l i 27 26 I
~ +N88°43'28"W 2640.61'* I
D J B L I N ~ '1PARCEL '8' S .~ -- -- ---.-_--~---
R A N C H ; t ~ w CO % ~ , 85 POB PARCEL 2 --
\' N o ~ ~ DUBLIN RE INVESTORS, LLC 1
' ~ ~`~` ~; F,, SERIES No. 2003-108250 ~ I c.i ~
" ~ ,v> , '~" - ~ ' °~ I ~ ROS N0. 1675 N ~ ~ a
~'''~*~ ~ ~ ~ ~ M BK25 R.O.S. PG31-32 ~ ~ - a o
,~~ ~r---- „' > I N I N APN 905-0002-003 N ~~ ~ N
~. //' `~ i w w 159.54f AC. w w o °o
~ - ~ `-----~~ I o NW I /4 SECTION 35 - NI ~ ~ u,
` ` PARCEL 'C' ~ I o T. 2 5. R. 1 E. ~ ~ a Z m
~~,`1, PARCEL 'A' ~~ o o M.D.B, be M. ~ ~ a rn z
O ~,) w o_
~` z z 1 /4 CORNER OF ?) U w `~
~~ ; SECTIONS 34 & 35 I a "'
N89°51_52"W 2651.00' __ -_ *N88°43'19"W 2631.95':
I --
F1RST AMERICAN 71TLE I CROAK
- rUARANTY CO. i SERIES No. 79-229985
~~ SERIES No. 98388140 , APN 905-0002-002
APN 935-0027-DD5 ; APN 905-0002-00~-01 .
IJORDAN RANCH)
0' 500' 1 ~ ~ ~' 2000'
EXHIBIT 1 .PAGE 1 OF 1
FALCON VILLAGE PROPERTY
CITY OF DUBLIN COUNTY OF
CALIFORNIA
LEGEND:
-- BOUNDARY L1NE
-------=--- EXISTING LOT LINE
POB POINT OF BEGINNING
mwc~Y~somps
CNIL ENGINEERING~LAND PLANNING~LAND SURVEYING
Pleosanton, CA (925) - 225-Ofi90
DRAWN I OIATE I SCALE I JOB N0. ~
f a- Bid ~o-zi-oa ~ ~•=~eoo' 19319.010
1~ ~'
'1
EXHIBIT 2
Diagram of the First Phase, the Subsequent Phase, and the Final Phase of the Prod ect ,
•
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EXHIBIT 3
Form of Regulatory Agreement for Anderson Residential Project
•
•
f~
DRAFT 10/15/2908
i•
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 Jine for Recorder's use
i•
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
i•
DRAFT 10/15/2008
'~~
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 se#
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 highthat 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 undertf~e 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 '
~g z~
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. ~ .
L 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) affordablerestricted 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 Fnterpretations. 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 10115!2008
~ p
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 wi#h such Act.
"Eligible Household" :means a household whose income upon initial occupancy
does not exceed the maximum income level for Very-LowJncome, 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 Jong 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
the City of Dublin and more particularly described in Exhibit A attached
incorporated by this reference.
hereto and
m
"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 10/1512008
~~ ~~~
• 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 asset
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 thaf 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 HUb cease to make
such determinations, Clty 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. Develoaer's Comaliance with Affordable Housin4 Oblictation.
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
t incorporated by this reference. The income levels and other qualifications of applicants for
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. Restncted 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 Projecf 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.
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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..
S 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
• .
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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.
4.1 Term of Restrictions. This Agreement shall remain in effect in
perpetuity.
. 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 riecessary 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 orother-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.
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The Parties hereby declare that is their understanding and intent that the burden
• of the covenants set forth herein touch and concern the band 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
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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, malntain, and preserve the Improvements and the
landscaped areas on the Property. All costs expended by City in connection with the "
foregoing, shall 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.
6.5Marketing 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 Projector state oc 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 shall-pay such charges
1153511-3 ~ 10 Anderson Project.
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•
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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 #hereof 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
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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 Mortgactee 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.
•
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(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 Projector
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-
monetary default following the date upon which City shall have given written notice of
the default to Developer, or if the nature of any such non-monetary default is such that it
cannot be cured within 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 taw 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
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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 Projector
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.
19. 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 no#ices 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 ay 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
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~o ~ 2.
delivered b first-clas or certified mail orb overni ht delive or b a transmission
• y s y 9 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 maybe 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 Time is of the Essence: Time is of the essence in the .performance
• of this Agreement.
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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
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DRAFT 1rr0,~/~,15??/2008
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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: Braddock and Logan Services, Inc.
By: a California corporation
Joni Pattillo, City Manager Its Manager
Attest:
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
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1153511-3
17
By:
Name:
Its:
Anderson Project
Regulatory Agreement
EXHIBIT A
Property Description
DRAFT 10/15/2008
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DRAFT 10/15!2008
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Exhibit B
OCCUPANCYAND 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 AMl 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.
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DRAFT 10/15/2008
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EXHIBIT C ~ ~O
Diagram of Location of Inclusionary Units
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1153511.2
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EXHIBIT D
ANNUAL REPORT-FORM
(Attach Form.)
DRAFT 1ff0/15/2008
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EXHIBIT 4
Multifamily GreenPoint Checklist
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Multifamily GreenPoint Checklist
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Build It ree
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The GreenPoint Rated checklist tracks green features incorporated into the home.. The recommended minimum
requirements for a green home are: Eam a total of 50 points or more; obtain the following minimum points per
i 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 organizatiori 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%
. Current Point Total ~~~
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1. Infill Sites •
^ a. Project is Located Within an Urban Growth Boundary & Avoids Environmentally Sensitive Sites 1
^ _ ...
b. Project Includes the Redevelopment of At Least One Existing Building
1
0 c. Housing Density of 15 Units Per Acre or More (1 pt for every 5 u!a) Enter Project Density Number (In Units PerAcre) 10 ~
_.
d. Locate Within Existing Community that has Sewer Line 8 Utilities in Place
1
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e. Project Redevelops a Brownfield Site or is Designated a Redevelopment Area by a Ciry
1
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f. Site has Pedestrian Access Within'/: 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 ~ 5) Cleaners ^ 6) Fire Station
^ 7) Hair Care ^ 8) Hardware ^ 9) Laund
ry
^ 10) Library ^ 11) Medical/Dental ^ 12) Senior Care Facility t
^ 13}Public Park ^ 14) Pharmacy ^ 15) Post Office 2
j
^ 16) Restaurant ^ 17) School ^ .18) After School Programs
^ 19) Commercial Office ^ 20) Community Center ^ 21) TheatedEntertainment
^ 22) Convenience Store Where Meath Produce are Sold.
g. Proximity to Public Transit
Development is Located Within:
^ 1l4 Mile of One Planned or Current Bus Line Stop 1
^ 1/4 Mile of Two or More Planned or Current Bus Line Stops 1
^ •
112 Mile of a Commuter TrainlLight Rail Transit System
1 . _ v.
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 least 2°k 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 8 Orientation
^ a. Protect Soil ~ Existing Plants ~ Trees 1 i
4. Design for Walking & Bicycling
^ a. Sidewalks Are Physically Separated from Roadways 8 Are 5 Feet Wide 1
^ b. Traffic Calming Strategies Are Installed by the Developer 1
^ c. Provide Dedicated, Covered & Secure Bicycle Storage for 15°k of Residents 1 d
^ d. Provide Secure Bicycle Storage for 5°k.of Non-Residential Tenant Employees & V'~sitors 1 ,
•5. Social Gathering Places
^ a. Outdoor Gathering Places for Residents (Average of 50 sf Per Unit Or More) 1
^ b. Outdoor Gathering Places Provide Natural Elements (For compact sites only) 1 I
6. Design for Safety and Natural Surveillance
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^ a. All Main Entrances to the Building and Site are Prominent and Visible from the Street 1 i
^ b. Residence Entries Have Views to Callers (Windows or Double Peep Holes) & Can Be Seen By Neighbors 1
MF GreenPoint Checklist 2005 Edition v.2
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7. Landscaping
Check here if the landscape area is <10% of the total site area. Projects with <10% landscape area can only check up to 3 boxes in this section.
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
^ c. Specfy Drought-tolerant California Natives, Mediterranean or Other Appropriate Species 1
_ ... ._
d. Create Drought Resistant Soils:
^ i. Mulch All Planting Beds to a Depth of 2 Inches or Greater as Per Local Ordiriance i 1
^ ii. Amend with 1 Inch.of Compost or as per Soil Analysis to Reach 3.5% Soil Organic Matter 1 j 1
e. Design & Install High-Efficiency Irrigation System
^ i. Specify Smart (Weather-Based) Irrigation Controllers [ 1
^ ii. Specify Drip, Bubblers or Low-Flow Sprinklers for All Non Turf Landscape Areas ? 1
^ f. Group Plants by Water Needs (Hydrozones) in Planting Plans & Identify Hydrozones on Irrigation Plans - 1
g. Minimize Turf in Landscape Installed by Builder
^ i, Do Not 5pedfy Turf on Slopes Exceeding 10°~ or in Areas Less Than 8 Feet Wide ' I 1
^ ' ii. Less Than 33% of All-Landscaped Area is Specified as Turf AND All Turf has Water Requirement <= To Tall Fescue ' ~ 1
8. Building Pertormance Exceeds Tkle 24 by at least 15%-Required
Enter the Percent Above the 2005 Version of Tdle 24 for Residential and Non-Residential Portions oithe Project.
Q% a. Residences: 2 Points for Every 1 ~° Above 2005 T24 I
p%
b. Non-Residential Spaces: 2 Points for Every 1%Above 2005 T24 0
;
9. Cool Site
^ a. At least 30°k of the Site Includes Cool Site Techniques 1 {
10. Adaptable Buildings
a: Incude Universal Design Principles in Units
^ 50°~ of Units 1
^ 80°k df Units 1
^ b. LivelWork Units Include A Dedicated Commercial Entrance 1
11. Affordability
a. A Percentage of Units are Dedicated to Households Making 80% or Less of AMI
^ 10%ofAllUnits 1
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^ 30% I.
1 .
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^
50%orMore
1 • _ _
^ h. Development Includes Multiple Bedroom Units (At least 1 Unit with 3BR or More at or Less Than 80°h AMI) 2
1. Construction & Demolition Waste Management
Divert a Portioo-of all Construction ~ Demolition Waste:
^ a. Required: Divert 50% R _~
^ b. Divert 65% _ _.
2
_ .... _ € .
^ c. Divert 80% or more w Z
2. Construction Material Efficiencies
^ a. Lumber is Delivered Pre-Cut from Supplier (80°k or More of Tota(Board Feet) 1
b. Components of the Project Are Pre-Assembled Off-Site & Delivered to the Project
^ 25% of Total Square Footage 2
. _a . __ .... .
^ 50°k of Total Square Footage 2
^ 75°k of Total Square Footage or More Z
3. Construction Indoor Air Quality (IAQ) Management Plan
^ a. An IAQ Management Plan is Written & Followed for the Project t 2
1. Recycled Aggregate
^ a. Minimum 25°~ Recyced Aggregate (Crushed Concrete) for Fill, Backfill & Other Uses 1
2. Recycled Flyash in Concrete
a. Flyash or Slag is Used to Displace a Portion of Portland Cement in Concrete
^ 20°k ~ 1
^ 30% or More _ ;
1
MF GreenPoint Checklist
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3. FSC-Certified Wood for Framing Lumber
a. FSC-Certified Wood for a Percentage of All Dimensional Studs: '
^ 40% ~ 2
^ 70% _.._
2. ~
b. FSC-Certified Panel Products for a Percentage of All Sheathing (OSB i~ Plywood):
^ 70% _ ~ . _
1
4. Engineered Lumber or Steel Studs, Joists, Headers 8 Beams
^ a: 90°k or More of All Floor & Ceiling Joists ; 1
^
b. 90% or More of All Studs a_., ~... _ ~..
2
^ c. 90% or More of All Headers i£ Beams 2
5.Optimal Value Engineering Framing
^
a. Studs at 24" Centers on Top Floor Exterior Walls BJor All Interior Walls _
1
^ b. Door & Window Headers Sized for Load ~ 1
^ c. Use Only Jack i£ Cripple Studs Required for Load 1
6. Steel Framing
^ a. Mitigate Thermal Bridging 6y Installing Exterior Insulation (At Least 1-Inch of Rigid Foam) 2
7. Structural Insulated Panels (SIPS) Or Other Solid Wall Systems
a. SIPS Or Other Solid Wall Systems are Used for 80%ofAll:
^ Floors. ~ 2 2
^ Walls __.....) 2 2
^ _
Roofs . .. .. _4
( 2 ~.....,
Z
8. Raised Heel Roof Trusses
^ a. 75% of All Roof Trusses Have Raised Heels 1
9. Insulation
^ a. All Ceiling, Wall & Floorlnsulation is 01350 Certified OR Contains No Added Formaldehyde ~ 1 s
^
b. All Ceiling, Wall & Floor Insulation Has a Recycled Content of 50°k or More _._. _
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10. Durable Roofing Options
^ a. Required:, No Shingle Roofing OR All Shingle Roofing Has 3=Yr Subcontractor Guarantee & 20-Yr Manufacturer Warranty ~ R
^ b. All Sloped Roofing Materials Carry a 40-Year Manufacturer Warranty 1
11. Moisture Shedding 8 Mold Avoidance
^ a. Building(s) Include a Definitive Drainage Plane Under Siding ~ ~ 4
^ b. ENERGY STAR Bathroom. Fans are Supplied in All Bathrooms, Are Exhausted to the Outdoors 8 Are Equipped with Contra 1
^ c. A Minimum of 80% of Kitchen Range Hoods Are Vented to the Exterior 1
12. Green Roofs
a. A Portion of the LowSlope Roof Area is Covered By A Vegetated or "Green"Roof •
^ 25°~ 2 2
^
50%orMore .. ~
2 ~ _..
2
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1. Passive Solar Heating
^ a. Orientation: Atleast 40°k of the Units Face Directly South ~ 2
^
b. Shading On All South-Facing Windows Allow Sunlight to Penetrate in Winter, Not in Summer _
~ 1
^ o. Thermal Mass: At Least 50%of the Floor Area Directly Behind South-Facing Windows is Massive 2
2. Radiant Hydronic Space Heating
^ a. Install Radiant Hydronic Space Heating for IAO purposes (No Forced Air) in All Residences 2
3. Solar Water Heating
^ a. Pre-Plumb for Solar Hot Water 1
^
b. Install Solar Hot Water System for Preheating DHW {
4 i
4. Air Conditioning with Advanced Refrigerants
^ a. Install Air Conditioning with Non-HCFC Refrigerants 1
5. Advanced Ventilation Practices -
Perform the Following Practices in Residences:
^ a. Infiltration Testirig by a GHERS Rater for Envelope Sealing 8 Reduced Infiltration j 2
^ b., Operable Windows or Skylights Are Placed To Induce Cross Ventilation (At Least One Room In 80°k of Units) 1 1
^ c. Ceiling Fans in Every Bedroom & Living Room OR Whole House Fart is Used i 1
6. Garage Ventilation
^ a. Garage Ventilation Fans Are Controlled by Carbon Monoxide Sensors (Passive Ventilation Does Not Count) 1
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7. Low-Mercury Lamps
^
a. Low-Mercury Products Are Installed Wherever Linear Fluorescent Lamps Are Used s
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b. Low-Mercury Products Are Installed Wherever Compact Fluorescent Lamps Are Used ~ Z
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 8 Placement 1 !
9.Onsite Electricity Generation
^
a. Pre-Wire for Photovoltaics ~ Plan for S ace Clear Areas on Roof & in Mechanical Room
- T
, _~ _
.
b. Install Photovoltaics to Offsets Percent of the Project's Total Estimated Electricity Demand
^ 10% 2 ~ 2 €
^ 20°k
^ 30% or more ~ 2
^
a Educational Display is Provided in a Viewable Public Area
1 _. .
10. Elevators
^ a. Gearless Elevators Are Installed j 1
11. ENERGY STAR®Appliances
a. Install ENERGY STAR Refrigerators in All Locations
^ ENERGY STAR-Qualified i
^ ACEEE-Listed Refrigerators 1
b. Install ENERGY STAR Dishwashers in All Locations
^ All Dishwashers Are ENERGY STAR-qualified ~ 1
^
Residential-grade Dishwashers Use No More than 6.5 Gallons Per Cycle
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^ c. Install ENERGY STAR Clothes Washers In All Locations ~ 1 I 2
^ d. Install Ventless Natural Gas Clothes Dryers in Residences 1 i
12. Central Laundry
^ a. Central Laundry Facilities Are Provided for All Occupants. ( 1
13. Water-Efficient Fixtures
^ a. All Showerheads Use 2.0 Gallons Per Minute (gpm) or Less ~ !1 1 1
b. High-Efficiency Toilets Use 1.28 gpf or Less or Are Dual Flush
^ In All Residences i ~ ~ 3
^ 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 1
^ Average flush rate is 0.1 gallons per flush or less fi
d. Flow Limiters Or Flow Control Valves Are Installed on All Faucets
^ Residences: Kitchen - 2.0 gpm or less 1 1
^ Non-Residential Areas: Kitchen- 2.0 gpm or less 0 0
^ Residences: Bathroom Faucets-1.5 gpm or less 1 1
^
Non-Residential Areas: Bathroom Faucets -1.5 gpm or less __
0
0
^
e. Non-Residential Areas: Install Pre-Rinse Spray Valves in Commercial Kitchens -1.6 gpm or less . ...
1
14. Source Water Efficiency
^ a. Use Recycled Water forLandscape Irrgation or to Flush ToiletslUrinals Z
~ b. Use Captured Rainwater for Landscape Irrigation or to Flush 5%of Toilets 8/or Urinals 4
^ c. Water is Submetered for Each Residential Unit &Non-Residential Tenant 4
1. Construction Indoor Air Quality Management T
^ 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 ~ i
^ b. Permanent Walk-Off Systems Are Provided at All Main Building Entrances & In Common Areas 1 1
3. Recycling 8 Waste Collection
^ a. Residences: Provide Built-In Recycling Center In Each Unit ~ 2
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MF GreenPoint Checklist 2005 Edition v.2 Page 5 of 8
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4. Use LowINo-VOC Paints 8 Coatings
a. Low-VOC Interior Paints (<50 gpl VOCs (Flat) and <150 gpl VOCs (Non-Flat)) ~ ~ ~~
^ In All Residences 1
(
^
In All Non-Residential Areas:
_. _ _. _ .x
! p _. __
._
.
b. Zero-VOC: IntenorPaints (<5 gpl VOCs (Flat))
^ In All Residences 1
^
In All Non-Residential Areas: _.-,_
¥ 0 _~_
_ _ _
c. Wood Coatings Meet the Green. Seal Standards for Low-VOCs _....
^ In All Residences 2
^
In All Non-Residential Areas:
0 1 .
d. Wood Stains Meet the Green Seal Standards for Low-VOCs
In All Residences 2
^ In All Non-Residential Areas: 0 (
5. Use Recycled Content Exterior Paint '
^ a. Use Recycled Content Paint on 50% of All Exteriors 1
6. Low-VOC Construction Adhesives
^ a. Use Low-VOC Construction Adhesives (<70 gpl VOCs) for All Adhesives 6 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 I
^ ii. Interior Trim ~
1
^
iii. Shelving _ .
I
1
^ iv. Doors ~ 1 ..
^
v. Countertops
~ ...
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b. Non-Residential Areas: At Least 50% of Each MatenaL•
^ i. Cabinets ~ p
^ ii. Interior Trim ''
~
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iii. Shelving _. ...
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^ iv. Doors 0
^ v. Countertops 0
8. Reduce Formaldehyde in Interior Finish Materials
Reduce Formaldehyde in Interior Finish Materials (Section 01350) for At Least 50°~ of Each Material Below:
a. Residences:
^ i. Cabinets j 1 ~
^ ii. Interior Tnm 1
^ iii. Shelving
~ ~ _ 1 ~
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^ iv. Subfloor ~ .
1 ,...
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l
.
b. Non-Residential Areas:
^ i. Cabinets 0
(
^ ii. Interior Trim
~., 0
~ ~
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^ iii. Shelving ._O. .
^
iv. Subfloor ._
0 ,
9. Environmentally Preferable Floonng
Use Environmentally Preferable flooring: A) FSC-Certified or Reclaimed Wood, B) Rapidly Renewable Floonng Materials, C) Recycled-Content Ceramic Tiles, D) Exposed
Concrete as Finished Floor or E) Recycled-Content Carpeti 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 -
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iv, Minimum 75°k of Floor Area ..
1 I
b. Non-Residential Areas:
^ i. Minimum 15%of Floor Area 0
^ ii. Minimum 30°k of Floor Area ~ 0
^ iii. Minimum 50% of Floor Area 0
^ iv. Minimum 75°k of Floor Area ~ ~ 0
~ 10. Low-Emitting Flooring
^ a. Residences: Floonng Meets Section 01350 or CRI Green Label Plus Requirements (50°k Minimum) ( 1
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11. Durable Cabinets
Install Durable Cabinets in All:
^ a. Residences j
_ 1 i
^ b. Non-Residential Areas ~ ,
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12. Fumiture & Outdoor Play Structures
^ a. Play Structures & Surfaces Have an Overall Average Recycled•Content Greater Than 20°k 1
^ b. Environmentally Preferable Exterior Site Furnishings 1
i
^ c. At Least 25°h of All newly Supplied Interior Furniture has Environmentally Preferable Attributes ~ _
1
13. Vandalism Deterrence
^ a. Project Includes Vandalism Resistant Finishes and Strategies 1
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1. Incorporate GreenPoint Checklist in Blueprints - t ...v~vYnv.~~~..._r .~vs._~cw.t ~_~ _~.x _. .C~L~.--.~...,v-~YL~.~.i
^ a. Required: Incorporate GreenPoint Checklist in Blueprints Y
2.Operations & Maintenance Manuals
^ a. Provide 0&M Manual to Building Maintenance Staff i 1
^ b. Provide 0&M Manual to Occupants 1 j 1
3. Transit Options
^ a. Residents Are Offered Free or Discounted Transit Passes Z i 1
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 by
local jurisdiction or GreenPoint rater.
Q Inrovaton in Community: Enter up to 4 Points at left Enter description here
Q
Innovation in Energy: Enter up to 4 Points at left. Enter description here ___..
Q Innovation in IAQIHealth: Enter up to 4 Points at left. Enter description here
Q
Innovation in Resources: Enter up to 4 Points at left Enter description here _ _ _.
Q Innovation in Water. Enter up to 4 Points at left. Enter description here
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Points Achieved from Specific Categories
Current Point Total
r._...,.~, . . ,: __ _ _,..._ . ......., ._..__.~.
Projject 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/Heaith (5), Resources (6), Water (3)
- Required measures 8.1a, C.IOa, and/or F.1a
MF GreenPoint Checklist 2005 Edition v.2 Page 8 of 8
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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
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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
79 ~zs~
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 fmal 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]
. ~b ~~
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date and year first above written. ~ i
.CITY OF DUBLIN DUBLIN RE INVESTORS, LLC
a California limited liability company
By: Braddock and Logan Services, Inc.
By: a California corporation
Joni Pattillo, City Manager Its Manager
Attest:
By:
Name:
Caroline Soto, City Clerk Its:
Approved as to form
BRADDOCK & LOGAN GROUP II, L.P.
. A California limited partnership
By: Braddock and Logan Services, Inc.
John Bakker, City Attorney a California corporation
Its General Partner
By:
Name:
Its:
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