HomeMy WebLinkAboutReso 133-10 Dublin RE Invest Afford HouseRESOLUTION NO. 133 - 10
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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APPROVING AMENDED AND RESTATED SUBSEQUENT AFFORDABLE HOUSING
AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF
FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS
WHEREAS, Dublin RE Investors, LLC (the Developer) is the owner of two parcels of land
within Fallon Village that 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 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 City Council held a public meeting on October 18, 2005, to review the
affordable housing proposal, and the City Council directed Staff to work with the Developer to
refine the affordable housing proposal; and
WHEREAS, the City and the Developer subsequently entered into an Affordable Housing
Agreement for the Construction of Inclusionary Units in the First Phase of the Positano
development, consisting of 416 lots, dated June 5, 2007, as amended on June 17, 2008,
November 4, 2008, June 16, 2009, October 20, 2009, January 2010, March 25 2010, and
August 17, 2010 ("the First Phase AgreemenY'), wherein the Developer agreed to construct a
total of 53 affordable units (11 single-family detached homes and 41 secondary units); and
WHEREAS, subsequently, the City and Developer entered into a Subsequent Affordable
Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of
Constructing Inclusionary Housing Units, dated November 4, 2008, as amended on March 25,
2010 ("the Subsequent Agreement"), for the remaining 627 lots of Positano known as the
Subsequent Phase; and
WHEREAS, the Subsequent Agreement provided that Developer would satisfy its
affordable housing obligations in the Subsequent Phase by among other things constructing a
78-unit offsite affordable housing project; and
WHEREAS, Braddock and Logan, on behalf of Dublin RE Investors, LLC (the Developer)
has determined that the offsite project is infeasible, and has therefore proposed an alternative
proposal to satisfy its affordable housing obligations, which includes the construction of 41 1-
bedroom, low-income, Second Units in the Subsequent Phase and the payment of a
$1,938,760 fee in-lieu of construction; and
Page 1 of 2
WHEREAS, the Project has been found to be Categorically Exempt from the California
Environmental Quality Act (CEQA); and
WHEREAS, a Staff Report dated August 17, 2010, and incorporated herein by reference,
described and analyzed the proposed amendment to the Affordable Housing Agreement; and
WHEREAS, the City Council did use its independent judgment and consider all said
reports, recommendations and testimony.
NOW, THEREFORE, BE IT RESOLVED that:
A. The City Council of the City of Dublin does hereby find that the alternate method
of compliance with the Inclusionary Zoning Regulations contained in the Amended and
Restated Subsequent Affordable Housing Agreement (which is included as Exhibit A) and the
First Phase Agreement, as amended simultaneously herewith, including constructing 94
integrated and secondary units that will remain affordable in perpetuity, the payment of an fee
of $1,938,760 in lieu of construction, and the payment of a prorated share of the $1,000,000
Community Benefit Payment, meet the purposes of Inclusionary Zoning Regulations for the
reasons specified in the Amended And Restated Subsequent Affordable Housing Ag~eement
For The Construction Of Inclusionary Units And Payment Of Fees In Lieu Of Constructing
Inclusionary Housing Units for the Subsequent Phase (627 Residential Lots of the Positano
Project ("the Amended Subsequent Agreement") attached hereto as Exhibit A.
B. The City Council of the City of Dublin does hereby approve the Amended
Subsequent Agreement attached hereto as Exhibit A.
C. The City Manager is authorized to execute the Amended Subsequent Agreement
attached hereto as Exhibit A including the accompanying memorandum of the agreement.
PASSED, APPROVED AND ADOPTED this 17th day of August 2010, by the following
vote:
AYES: Councilmembers Biddle, Hart, Hildenbrand, Scholz, and Mayor Sbranti
NOES: None
ABSENT: None
ABSTAIN: None
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City Clerk
Mayor
Reso No. 133-10, Adopted 8-17-10, Item 8.2 Page 2 of 2
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AMENDED AND RESTATED
SUBSEQUENT AFFORDABLE HOUSING AGREEMENT
FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES
IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS
Dublin RE Investors, LLC and Braddock and Logan Group II, L.P.
Subsequent Phase (627 Residential Lots) of the Positano Project
THIS AMENDED AND RESTATED AGREEMENT ("the Agreement") is hereby
entered into this 17th day of August, 2010 ("the Effective Date") by and among the City of
Dublin ("the Cit}~') and Dublin RE Investors, LLC, a California limited liability company and
Braddock & Logan Group II, L.P., a California limited parinership (collectively, "the
Developer").
Recitals
A. Chapter 8.68 of the Dublin Municipal Code contains Inclusionary Zoning Regulations
("the Regulations"). The Regulations were adopted pursuant to Strategy I.B. of the City's
General Plan Housing Element, the purpose of which is to create affordable housing
opportunities in the City of Dublin for very low-, low- and moderate-income households.
B. The City of Dublin adopted the Regulations recognizing that the cost of new housing
is so high that persons with very low-, low- and moderate-incomes are increasingly unable to
locate affordable housing in the City. The purpose of the Regulations is to achieve a balanced
community with housing available at all income levels.
C. Accordingly, the Regulations require that residential projects with 20 or more
units/lots contain at least 12.5% very low-, low- and moderate-income units/lots_ The
Regulations require that the units be constructed in the following proportions: 30% very low-
income, 20% low-income, and 50% moderate income. In lieu of constructing 40% of the
Inclusionary Units that the Regulations would otherwise require, the Regulations authorize
developers to pay a fee, currently set by the City through June 30, 2011 at $102,151 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, 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 and the Expanded First Phase are depicted in
Exhibit 2.
Amended and Restated
Subsequent Affordable Housing Agreement
for the Positano Project
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F. On November 8, 2005, the Planning Commission ("PC") approved a vesting tentative
subdivision map (PC Reso. No. OS-61) ("the VTM Resolution") to create 1,043 residential
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 and is in the process of filing additional final maps.
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. 5uch agreement shall include but is not limited to providing detail
regarding the number of affordable units required, specify the schedule of
construction of affordable units, set forth the developer's manner of compliance
with City of Dublin Inclusionary Zoning Regulations and impose appropriate
resale controls and/or rental restrictions on the affordable units. If the agreement
provides for construction of the units off-site, as provided in DMC section
8.68.040.B, it shall require City Council approval and Council findings as
required by said section and shall include provision for security adequate to assure
completion of the off-site affordable units concurrently with the completion of the
construction of the market rate units to be constructed on the lots created by the
vesting tentative map.
H. Under the Regulations, the City Council may wholly or partially waive the
requirements of the Regulations and approve alternate methods of compliance with this Chapter
if the applicant demonstrates and the City Council finds that such alternate methods meet the
purposes of the Regulations.
I. Based on 1,043 units, the Developer's inclusionary zoning obligation under the
Regulations would be 130 units (1,043 times 0.125 equals 130.375), and it would be permitted to
pay fees in lieu of construction to satisfy the obligation as to 52 units (130 times 0.4 equals 52),
leaving a must-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 proposed to: (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-
Amended and Restated
Subsequent Affordable Housing Agreement
for the Positano Project
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unit off-site affordable project consisting of 2 bedroom, 2 bathroom rental apartments, which
would include 78 inclusionary units to satisfy the obligations of the Project; and (d) contribute a
$1,000,000 community benefit payment to the City.
L. Subsequently, the City and Developer entered into an initial affordable housing
agreement ("the First Phase Agreement"), dated June 5, 2007, for the first phase of the Project,
which consisted of 247 residential parcels, the location of which is shown on Ezhibit 2. That
agreement was subsequently amended on June 17, 200$, November 8, 2008, June 16, 2009,
October 20, 2009, January, 2010, March 25, 2010, and again concurrently with the execution of
this Agreement. As amended, the Fust Phase Agreement expanded the nutnber of residential
units subject to the First Phase Agreement from 247 units to 416 units. The 416 units covered by
the First Phase Agreement aze referred to as"the Expanded First Phase."
M. The First Phase Agreement as amended satisfies the affordable housing obligations
solely as to the Expanded First Phase and provides that further development beyond the
Expanded First Phase would require a subsequent affordable housing agreement.
N. Accordingly, the parties entered into that subsequent affordable housing agreement
("the Original Subsequent Agreement"), dated November 4, 2008 and amended on March 25,
2010, that sets forth the additional affordable housing obligations for those portions of the
Project outside of the Expanded First Phase.
O. The Original Subsequent Agreement provided that Developer would satisfy its 130
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 ("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 oi~ site affordable rental units; (b)
making a community benefit payment prior to issuance of each building pemut 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.
P. Developer has determined that it is infeasible to consiruct the 78 off-site affordable
rental units, and it has, following further discussions with City staff, proposed the following
alternate method to satisfy its 130-unit obligation for the Project: (a) constructing a total of 94
units as follows: (i) 2 integrated inclusionary units (1 low income and 1 moderate income),
which are or would be affordable in perpetuity, rather than for 55 years as the Regulations
require ("the Integrated Units"), (ii) 21 studio and 71 1-bedroom, secondary dwelling units (1
very low income and 70 low income); (b) paying a fee (in three installments) of $1,938,760 in-
lieu of construction of inciusionary units; (c) making a community benefit payment prior to
issuance of each building pernut equal to $958.77 (which amount is calculated based on the
proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); (d)
including rear yard landscaping and energy efficiency measures to reduce the homeowners' cost
Amended and Restated
Subsequent Affordable Housing Agreement
#or the Positano Project
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of living in the 2 integrated inclusionary units; and (e) incorporating green building principles
into the 130 inclusionary units.
Q. The City Council hereby finds that the alternate method of complying with the
Regulations for the Project, as set forth below and in the First Phase Agreement as amended,
meets the purposes of the Regulations, because it results in the creation of inclusionary units (94)
in excess of the Developer's must-build obligations under the Regulations (78), because the
proposal includes deeper affordability than required under the Regulations (71 low income
versus the 16 required), and because the in-lieu fee payment will be made earlier than otherwise
required by the Regulations.
R. The parties wish to amend and restate the Original Subsequent Agreement in order to
incorporate Developer's revised alternate method of complying with 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 Proj ect, Developer and City for themselves and their
respective successors and assigns hereby agree as follows:
1. .Amendment and Restatement. This Agreement amends and restates the Original
Subsequent Agreement in its entirety.
2. Definitions and Interpretations. Terms used in this Agreement shall be defined as
set forth in Chapter 8.68 of the Dublin Municipal Code.
3. Developer's Compliance with Affordable Housing Obli~ation. Developer intends
to complete the Project in multiple phases. 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 53
Inclusionary Units (1 1-bedroom, very low-income, Second Units; 21 studio, very low-income,
Second Units; 29 1-bedroom, low-income, Second Units; 1 4-bedroom, low-income Integrated
Unit; and 1 4-bedroom, moderate-income Integrated Unit); and (b) making a$958.77 community
benefit payment prior to issuance of each building permit in the Expanded First Phase.
b. Subsequent Phase (627 Residential Parcels). Developer has identified a
627-1ot portion of the Property that is referred to herein as the "Subsequent Phase." The
Subsequent Phase is depicted in Exhibit 2 and consists of the neighborhoods that are referred to
as Neighborhood C3 (a portion), Neighborhood D1, Neighborhood D2, Neighborhood D3,
Neighborhood E1, and Neighborhood E2. Developer will satisfy its Affordable Housing
Obligation for the Expanded First Phase by (a) constructing 41 1-bedroom, low-income, Second
Units; (b) paying in-lieu fees as provided in Section 4 of the Agreement; (c) making a$958.77
Amended and Restated
Subsequent Affordable Housing Agreement
4 for the Positano Project
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coznmunity benefit payment prior to issuance of each building permit in the Subsequent Phase
(excepting Second Units) as provided in Section 5 below.
i. Exhibit 3("the Location Diagram") depicts the location of the 41
1-bedroom, Second Units to be constructed in a portion of the Subsequent Phase known as
Neighborhoods C3, Dl, and D2. Developer may request that the Community Development
Director approve changes to the Location Diagram that alter the location of the Second Units.
Upon the Community Development Director's approval, which shall be administrative, the
revised Location Diagram shall be automatically incorporated into this agreement as Exhibit 3,
replacing the previous Exhibit 3. In approving any revised Location Diagram, the Community
Development Director shall find (a) that the Location Diagram shows 20 Second Units in
Neighborhood C3, 10 Second Units in Neighborhood D 1, and 11 Second Units in Neighborhood
D2; and (b) that the Inclusionary Units are "reasonably dispersed" throughout Neighborhoods
C3, D1, and D2, as required by Section 8.68.030.E of the Regulations.
c. If the Building Official or Community Development Director determines
that the Inclusionary Units have not been ox are not being constructed in the locations depicted
on E~chibit 3 or have not been or are not being constructed concurrently with the market-rate
units in Neighborhoods C3, D 1, and D2 as required by this Section 3, the Building Official shall
withhold further issuance of building permits in the Subsequent Phase until construction of the
Inclusionary Units has been completed to the satisfaction of the Community Development
Director.
4. In-Lieu Fees. Developer shall pay in-lieu fees of $1,938,760 in partial
satisfaction of its obligation to construct 130 Inclusionary Units within the Project. The
payments shall be made in installments as follows:
First Payment
Second Payment
Third Payment
Total
90 days after Effective Date $775,504
of this Agreement
24 Months after Effective
Date of this Agreement
$775,504
36 Months after Effective
Date of this Agreement
$387,752
$1,938,760.00.
If Developer fails to make any of the installment payments when due, the City may, until such
installment payments are made, withhold any authorizations or services to the Project, including,
but not limited to, the issuance of building permits, occupancy authorizations, and the processing
and approval of final maps. 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
until such time as it have made any installment payments under this section that have come due.
5. Community Benefit Pavment. As provided in Section 3(b) above, Developer
hereby agrees to make a$958.77 community benefit payment prior to issuance of the building
Amended and Restated
Subsequent Affordable Housing Agreement
for the Positano Project
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permit for each residential unit (excepting Second Units) in the Subsequent Phase. The
community benefit payment required by this Section shall be in addition to the $2,396.93
community benefit payment required by the Development Agreement for the Fallon Village
Project between Developer and the City, dated December 20, 2006.
6. Inclusionar~Unit Design, Location, and Size.
a. Exterior Materials and Exterior Architectural Desi~n. The exterior
materials and exterior architectural design of the Tnclusionary Units shall be consistent with the
Project's market-rate units upon their review and approval through the Site Development Review
by the Planning Commission; provided, however, that minor changes to unit size may be
approved by the Community Development Director through a Site Development Review waiver.
b. Unit Location. Consistent with Section 8.68.030 of the Regulations, the
Inclusionary Units shall be dispersed throughout the individual phase in which they are
constructed.
c. Green Building Principles. Construction of the Secondary Units shall
incorporate Green Building Principles by meeting the minimum requirements for a green home
set forth in the "Single Family GreenPoint Checklist" attached hereto as Exhibit 4.
~ d. Unit Bedrooms and Size. The developer proposes to provide: 41 low-
income, 1 bedroom, Secondary Units. The City hereby finds that, while this breakdown does not
reflect the range of numbers of bedrooms provided in the Project as a whole, as required by
Section 8.68.030.E of the Regulations, the Developer's alternate method of compliance meets the
purposes of the Regulations.
7. Re~ulatory Agreements. Developer shall require the initial buyer of each parcel
on which one of the Secondary Units is located to execute, and record against the parcel, a
Secondary Unit Regulatory Agreement in substantially the forzn attached hereto as Exhibit 5.
Developer shall ensure that the initial buyer attends an orientation session, provided by an
independent third party approved by the City, that describes the requirements of the Secondary
Unit Regulatory Agreement
8. 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.
9. 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
contained in sections 4 and 5 of this Agreement.
10. Memorandum of A~reement to be Recorded. Developer and City shall execute
and acknowledge a Memorandum of this Agreement ("Memorandum") substantially in the form
Amended and Restated
Subsequent Affordabls Housing Agreement
for the Positano Project
o~a~ ~
attached hereto as Exhibit 6, and City shall cause the Memorandum to be recorded in the
Official Records of Alameda County upon its execution.
11. A~reement 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 aIl 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
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.
12. Assi~nments and Transfers.
a. Ri~ht to Assi~n. 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. 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 Assig~nment. 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
Amended and Restated
Subsequent Affordable Housing Agreement
for the Positano Project
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City Manager pursuant to Sections 12.a and 12.b; and b) such obligations are expressly assumed
by Transferee and provided that such Transferee shall be subject to all the provisions hereof.
d. Termination of Agreement Upon Sale of Individual Lots to the Public.
Notwithstanding any provisions of this Agreement to the contrary, the burderis 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.
13. 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.
14. Hold Harmless. Developer shall hold City, its elective and appointive boards,
commission, officers, agents and employees harmless from and against any or all loss, liability,
expense, claim, costs, suits, damages of every kind, nature and description directly or indirectly
arising from the performance of the obligations or undertakings of Developer pursuant to this
Agreement. Developer shall defend City and its elective and appointive boards, commission,
officers, agents and employees from any suits or actions at law or in equity for damages caused
or alleged to have been caused, by reason of any of the obligations or undertakings of Developer
pursuant to this Agreement. It is further provided that this hold harmless agreement shall apply
to all damages and claims for damages for every kind suffered, or alleged to have been suffered,
by reason of any of the obligations or undertakings of Developer pursuant to this Agreement.
15. 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 ar in violation of the rights of the City hereunder.
b. Take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations, covenants, conditions and restrictions of the Developer
under this Agreement.
c. If Developer transfers any portion of the project in bulk and a Transferee
defaults under this Agreement, the City shall exercise the foregoing remedies only with respect
to the defaulting Transferee and its portion of the proj ect; and so long as Developer has not
otherwise defaulted hereunder, the City shall not seek to exercise any rights and remedies against
Developer.
Amended and Restated
Subsequent Affordable Housing Agreement
for the Positano Project
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16. Attomevs' 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.
17. 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.
18. Corporate Authoritv. If either party is a corparation, 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 accardance with its terms.
19. 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 DeveIoper 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.
20. 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 and Subsequent Phase of the Project
Exhibit 3 Form of Diagram and Location of Inclusionary Units in the Subsequent
Phase of the Project
Exhibit 4 Single Family GreenPoint Checklist
Amended and Restated
Subsequent Affordable Housing Agreement
9 for the Positano Project
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Exhibit 5 Form of Secondary Unit Regulatory Agreement
Exhibit 6 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
By_
Joni Pattillo, City Manager
Attest:
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
DUBLIN RE INVESTORS, LLC
a California limited liability company
By: Braddock and Logan Services, Inc.
a California corporation
Its Manager
By:
Name Ja s~~, 6. 2oP~.~1
Its: (~,,. s,~{,,-
BRADDOCK & LOGAN GROUP II, L.P.
A California limited partnership
By: Braddock and Logan Services, Inc.
a California corporation
Its General Partner
By:
N : 7'a ~•~~ 6. Rd~~,
Its: ~,~>a.Q.,~@~
1481526.4
Amended and Restated
Subsequent Affordable Housing Agreement
10 for the Positano Project
~,~ ~ ~ ~~o
~
19319-O1C
7/30/2010
EXHIBIT
POSITANO SUBSEQUENT PHASE:
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF DUBLIN, COiJN"TY OF
ALAMEDA, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
PARCEL B-1 AS SAID PARCEL IS SHOWN ON T'F~ MAP OF TRACT 7853, FILED IN BOOK 303
OF MAPS AT PAGES 1 THROUGH 5, A PORTION OF RESULTANT PARCEL B-2 OF LOT LINE
AD7USTMENT LLA-10-01, APPROVED BY THE CIT'Y OF DUBLIN IN CERTIFICATE OF
COMPLIANCE RECORDED IN SERIES NUMBER 2010-80274, AND A PORTION OF RESULTANT
PARCEL D-1 OF LOT LINE ADJUSTMENT LLA-08-O5, APPROVED BY T'HE CITY OF DUBLIN IN
CERTIFICATE OF COMPLIANCE RECORDED IN SERIES NUMBER 2008120732, ALAMEDA
COIJNTY RECORDS,
EXCEPTING THEREFROM THE FOLLOWING:
THE LOTS DESIGNATED AS LOT 1 THROUGH LOT 7 OF THAT CERTAIN MAP ENTITLED
"TRACT 7855" AND TF~ LOTS DESIGNATED AS LOT 1 THROUGH LOT 23 OF THAT CERTAIN
MAP ENTTTLED "TRACT 8051" ALAMEDA COUNTY.
SAID AREA BEING MORE DEFINED AND PARTICULLY SHOWN ON THE EXHIBIT ENTTTLED
"POSTTANO PROPERTY BUII,DOUT PHASES EXHIBIT"
END OF DESCRIPTION
A PORTION OF APN'S 985-0028-007-02, 905-0002-003, 985-0075-004 & 985-0075-010
mACKnY~somps
CML ENGINEERING~LAND PLANNING~ LAND SURVE`riNG
5142 Ronk4n Drive Suite B, Pleasmton, CA. 94588-3355
(925j 225-0690
P:\19319VegaIs~DESCRIPTiON -AFFORDABLE IJNIT IOCA'CIONS.DOC
Fvl~il~;+ 1
~ , I
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PARCEL MAP 8327 ~ ~ ~
(298 M 14-17) ~
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SERIES N0. ,
~ , • ~ 2010-080274 - '
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DUBIJN RANCH _ ~
RESULTAt~ff RESUL7AN7 PARCEL D-] I
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SERIES NO. RESUL7ANT PARCEL C-2 SERIES N0. ~
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v i BJP ROF JaRDAN RANCH LLC SER1E5 N0. 20a8-148d49
PLAT FOR POSTTANO ~~~ ~ ~~S
"5UBSEQUENT PHASE» CML ENGINEERING~LAND PLANNING~LAND SURVEYING
pORTION OF RESUI.TANf PARCEL 'B-2' OF LLA-10-01, N0. 201D-080274 pleasanton, CA (925) - 225-0690
~ PORiION OF RfSULTANT PARCEL 'D-1' LU-08-05, N0. 2008-120732 D~WN DATE SCALE JOB N0.
~ PARCEL B-t UF TRACT 7853
~~ W~ ~~, ~~ cuFOr+NN IBM 07-30-10 1"=500' 19319-O1C
7-30--1010 i~: 1,~47 mmcdella+ F. ~19319~Na\LU Parcd B7 d~ C2~LU Parcel B-2 ~ C-2dwg
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SERJES N0.
2007-27973] J~ PAGE 2 OF 2 ~:
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PLAT FOR POSITANO ~~~~ ~ ~0~~~
~~SUBSEQUENT PHASE~~ CML ENGINEERING~LAND PLANNING~LANO SURVEYING
R6ULTANT PAFtCEL 'B-2' OF LLA-10-O1, INSTRUMENT N0. 2010-080274 Pleusanton, CA (925) - 225-0690
~ ppHitON OF RESULTANT PARCEL 'D-1' INSiRU1~ENT N0. 2008-120732 p~q~yN DATE SCALE JOB N0.
CIlY OF DUBLIN COUN7Y OF AIAMEDA CALIFORNIA IBM 07-30-10 1"=500• 19319-o1C
7-30-?O10 14.•13.•47 mmcdellon P: ~T9319~Na\LU Porcel B2 ~ C1~LL.1 Porce/ B-2 ~4 C-2.dwg
I CRDAfC S~RJ~S NO. 79-229985 I
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----~
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DUBLIN, CALIFORNIA
POSITANO
PROPERTY
DES CRIPTION
BUILDOUT
PHASES
~
a~ 300' 600' tzoa~
~~
i9319-0
~
~
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~ ~~ ~
Subsequent Phase:
Affordable Unit
Locations
I Neighborhood Key I
19319-01
LEGEND
~ ~ ~ Np.~ ~D~o~'
Fapaoded F"vrt Plux
AFFORDABLE LOT LOC.ATIONS:
Low taeomy
X OueHodmumSecoodUeih (41j
~~~~
rnx ct~•uno nnwrc.wo sua.crr+c
vtb~wnort u wsee (ass) us-oeao
FYh;h;t 2
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~
Single Family GreenPoint Checklist date:
The GreenPoint checklist tracks green features incorporated into the home, The recommended mini-
mum requirements for a green home are: Earn a total of 50 points or more; obtain the following minimum '
points per category: Energy (11), Indoor Air QualitylHealth (5), Resources (6), and Water (3); and meet
the prerequisites A.3.a ~50°o construction waste diversion) and N.1 (Incorporate Green Points checkiist
in blueprints).
I:i° _:~~., . C~:.! ~'1 ~~: 8i, I.t... ~~~a;::0 h:,i~~. 3i.. i.~..~f'~.~;r,C ~:l I`lg ....s t.i:'1f.' ~(it'~S:fi.t,-:~ ~ l_.o: ~1 ~..'~.~~-'~::
t;~:;;:=tin-; ,~raEi;:~:le ai wtv:,~.buil~iita~e~r.vro.
~~`:1 Build Ifi Gre+en
5ma~! Sc~~~ 1:r; ~s ~ rcr;; il;~~ 5: ~~;; ~~; ;;~
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B.LAND5CAPING - ' _ . _
' P.ossible Points
1. Conswct ResourcrEffcient Landscapes
^ a. No lnvasive Species Listed by Cal-IPC Are Planted , 3 =
_ . , _. _._ .....
^ b. No Plant 5pecies Wll Require Hedging
....._ a..? _. . ._.
^ c. 75°0 of Plants Are Califomia Natives or Mediterranean Species t
^ 2. Use Fire-Safe Landscaping Techniques '-
3. Minimize TudAreas in Landscape Installed hy Builder
^ a. All Turf Wiil Have a Water Requirement Less than or Equai to Tall Fescue ( ` Z
^ b. Turf 5hall Not Be Installed on Slopes Exceeding 10°/ or in Areas Less Ihan 8 Feel4Vde ? Z
^ c. Turf is <33% o( Landscaped Area ~ ' f 1
^ d. Turf is <1 D ~o of Landscaped Area i 1
4. Plant Shade Trees 1 ~ 7
5. Implement Hydrozoning: Group Plants by Water Needs ~
6. Install High-Efficiency Irtigation Systems
^ a. System Uses Only Low-Flow Drip, Bubblers, or Low-flow Spnnkiers ( ' ?
. ,... _. . : _ _ _ _.
^ b. System Has Smart (Wealher-Based) Controllers E 2
^ 7. Apply Two Inches of Compost in the Top 6 to 12 Inches of Soil ! 2
^ 8. Muich NI Planting Beds to the Greater of 2 Inches or Loal Water Ordinance Requirement ~ -
^ 9. Use 50°~ Salvaged ar Recycled•Content Matedals (or 50 % of Non•Plant Landscape Elements 1
^ 1D. Reduce Light Pollutlon by Shielding Fixtures andlor Direding Light Downward
C. FOGNllAT'(Oti " '' `' ' , Possible Points
~^ 1. Incorporate Recycled Flyash In Concrete '~"°""""` `"'"'""__. _..._.r.~..~.,..._
^ a. Minimum 20% Flyash ' - .
^ b. Minimum 25% Flyash _~ V ___ ! -
___._ __u ~.._~- --___._ _ _..~~____
~ 2. Use FrosRProtected Shallow Foundation in Coid Areas (C.E.C. Climate Zone 16) ' ~
_______.___..-__ _______._____ __~_._...~...._.~ ___.,~-_.~~_--_.
^ 3. Use Radon Resistant Construction pn Ac•Risk Locations Only) ~~~~ ~ ~_ -
D. STRtiCTLTItAL FRANiE'& BLALDI~G'EIVYELOPE ~, _~,____~__ _,_ ___,______,:~ Possibie Points
1. Apply Optimal Value Engineering
^ a. 2x4 Studs at 24-Inch On Center Framing ` -~
.. .. _
^ b. Door and Window Headers Sized for Load ; -
_._
^_ c, Use Onty Jack and Cnppie Studs Required for Load _~_T _.______.___..._.___,___.__ _.~..._ y
Single-Family GreenPoint Checklist
2006 Edition
Page 1 of 4
Exhibit 4
~~ ~~
~ ---- y_ _ ~
c ~
s a ~ ~ ~
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E m ~ °m
~
.___ U W a ~ ~
'~ -_
. . ... . .._.__ ... . __. ..._.:. . . ...... ...._.. ........ _ _.._...._ .... ..... _...
2. Use Engineered Lumber
^ a. Beams and Headers '
^ b. Insulated Engineered Headers i
^ c. Wood I-Joists or Web Tiusses for Floors '
^ d. Wood l-Joists or Rafters ?
^ e. Engineered or Finger-Jointed Studs for Vertical Appiica6ons
______..__......__._ ._.__._..-------.--- ; ' "
_..____. __.__._T __._~ ._ _._.._~.._.. r_. _ _---..___._____
3. Use FSC-Certified Wood
^ a. Dimensional Studs: Minimum 40°!0 1
^ b. Dimensional Studs: Minimum ; ~°;o ,„ ~
^ c. Panel Products: Minimum 40% -
^ d. Panei P~duds: Minimum 70°'o Y_
~
^ 4. Design Energy Heels on Trusses p5 % of Attic Insulation Height at Outside Edge of Exterior Walq _
^ 5. Design Trusses to Accommodate Ductwork _
----.___. _.._ - -- __ _ ----- ` 1. i $
----- ----------__ -- ---------
6. Use Oriented Strand Board (OSB)
^ a. Subfloor ~ ? - "
_ _ .._ .. _.
^ b. Sheathing ~ _~ ~ ~
~ 7. Use Recycled-Content Steel Studs for 9D % of Interior Wa11 Freming ____ __
8. Use Solid Wall Systems (Includes SIPs, ICFs, 8 Any Non-Stick Frame Assembly)
^ a. Floors ? ` 2 '
_ _ ..
^ b. Walls 2 ~
_. ._
_ _~. ......~__~__~_. ~ _ _
^ c. Roofs ,
' 2 i ~
^ 9. Thermal Mass Walls: 518•Inch Drywall on All Interior Walls or Walis Weigh more than 40 Iblcu.R ~~ ' 1
10. Design and Build SWcturet Pest Controls
^ a. Install Termite Shields & Separete All Exterior Wood-to-Concrete Connecfions
~ ~
4 ; 1'
by Metal or Plastic FastenerslDividers , ,
t ...__? ,
^ b. Ail New Plants Have Trunk, Base, or Stem Located At Least 36 Inches from Foundation
~~~ ~ ~
~ 11. Reduce Pollution Entering the Home from the Garage ~
^ a. Tightly Seal lhe Air Barner beiween 6arage and Living Area ~ ~ ?
^ b. Install Separate Garage Exhaust Fan
~~~ ~ ='
12. Install Overhangs and Gutters ~
^ a. Minimum t6-Inch Overhangs and Gutters '„,, 3 ? '
^ b. Minimum 241nch Werhangs and Gutters ~_ i ~
E. ~YTEItIOR FL~tISEI T Possible Points
^ 1. Use Recycled•Content (No Yrgin Plastic) or FSGCertified Wood Decking i i 2'
^ 2. Install a Drainage Ptane (Rain Screen Wall System) ~'
3. Use Durable and Non-Combustible Siding Matedals ~.
4. Select Dureble and Non-Combustible Roofing Materials 's 1:
Passible'Paints
1. Distribute Domestic Hot Water Efficiently
^ a. Insulate Hot Water Pipes from Water Heater to Ktchen ? ].
_ . . _, ... __ ..._ .
^ b. Insulate All Hot Water Pipes OR Install On-0emand Hot Water Circufation System
in conjunction with F.1.a Insulate Hot Water Pipes from Water Heater to KRchen - `
_ _._._.. _ :. _
^ c, Locate the Water Healer within 25 teet of All Hot Water Fixtures and Appliances ' ~
, _. ~.. , _-. _ .
^ d. Use Engineered Parallel Piping ~ '
^ 2. Install Only High Efficiency Toilets (Dual-Flush or <=1.3 gpf)
G. AI'I'LIA;~CES : Possible Points
_
_
._
..__ ~~_______. .
~.... _.
_
~....,._.,..
~
1. Instail ENERGY STAR Dishwasher
^ a, ENERGY STAR
_ -.... _ _
^ b. Dishwasher Uses No More than 6.5 Gailons/Cyele
~ 2. Install ENERGY STAR Clothes Washing Machine with Water Factor of 6 or Less ~
___
.__.~.....__________ ~
_
3. Install ENERGY STAR Refrigerator --"."_. ___ .
^ a. ENERGY STAR:15% above Federal Minimum
~.. _ ...... :
^ b. Super-Efficient Home Appliance Tier 2: 25% above Federal Minimum '
^ 4. Instail Built-In Recycling Center 2:
Single-Family GreenPoint Checklist 2006 Edition Page 2 of 4
~ j~~`~
Possible Points
J. BUILllING YEItFO1LiIANCE '
Design and Build High Performance Homes (2 points for each 1% above T-24, up to 30 pts)
1 ~ ~
~
D°/. .
Enter the percent above Tdle 24 in the cell af left. Any value over 15% will automatically eam 30 poinfs.
`F
2. House ObWlns ENERGY STAR with Indoor Alr Package Certif cation _~_
~
5 2
~ 3.Inspection and Diagnostic Evaluations , 1 ,
^ a. Thircl Party Energy and Green Building Review of Home Plans _ - -
^ b. Blower poor Test Performed ~' 1 ~ '
^
_ c. House Passes Combustion Safery Backdraft Test
._.~ __ _
.
__.~ -----
- Possibie Points
',
_
I{ RE\EW~BLEENERGT . .,___.___..___.. .__._~. .-----....___..__._ _
G
[~ ~ 1. Pre-Plumb for Salar Hot Water Heating ~~
^ 2. Install Solar Water Heating System
3. Install Wiring Conduit for Future Photovoltaic Installation 6 Provide 200 ft2 of South•Facing Roof ~
~~~
Z
4. Install Photovoltaic (P~ Panels , 5 :
. _..
^ a.1.2 kW System .. .~ _
U ~ ~ . __.
^ b. 2.4 kW System . " .
6 '
^ c. 3.6 kW ormore _..~.r.~-__~~~-•~-..- w----
2006 Edition Page 3 of 4
Single-Family GreenPoint Checklist
~V ~ ~
i a ^ ! ~
, ~ - ~ -- ~ ----
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Q " m
.
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L. FINISFIES :
.._..._. ...:..,.....__..._..___~_w__ _ :.: _,w
..
.
.
.
.
_______u_
--
---- "__`. ..~~_
'Possibie Points
_
_. _ _
_
.
,
.
_.. ..--
_ ,____
-
-._
1. Provide Permanent Walk-Off Mats and Shoe Storage at Home Entrances
..__ ..
_..._._..___ __---------- -- ----.___._.._~_ ------- .. ..--- --._......~. _ .._ .._--- ..
__-.__ _~
'
- ---=-----------..._
2. Use LowlNo•VOC Paint
^ a. Low-VOC Intenor Wall/Ceiling Paints (<50 gpl VOCs (Flal) and <150 gpl VOCs (Non-Flat)) ~y ~
^
--. b. Zero-VOC: Interior Wall/Ceiling Paints (<5 gpl VOCs (Flat))
.. ;:;
~:
^ _.._ _.._...._.._..~._.~_.._____ . _._.__._. _.__..__.. ...._.___.----._. ___ _._.._ ._ _... _..._ __.____._.......__
3. Use Low VOC, Water•Based Wood Finishes (<150 gpl VOCs) __.__:_.__
_---
J
4. Use Low•VOC Construction Adhesives (<7D gpl VOCs- for All Adhesives 2
~~ 5. Use Recycled-Content Paint '
6. Use Environmentally Preferable Materials for Interior Finish: A) FSC•Certified Waod, B) Reclaimed Lumber,
C) Rapidly Renewable D) Recycled-Content or E) Finger-Jointed
Al Least 50%a of Each Material (1 pt each):
^ a. Cabinets '
•
~
^
b. Interior Trim ._ ... ._. _. .
_.,...
_
-
^
c.5helving _
:
~
^ d. Doors _ , ,
-
^ e. Countertops _ _... ; .._.. _.
7. Reduce Formaldehyde in Interior Finish (Section D135D) for At Least 50% of Each Material Below: ~
^ a. Cabinets
'
^ b. Interior Trim _._._ _. _ ..:
j .
^
c. Shelving _. .~.. ~ ........ _ .
~
^
d. Subfloor _ _, _
_
~ r i
^ 8. After installation of Flnishes, Test of Indoor Air Shows Fortnaldehyde Level <27ppb ~~ ; 3':
b~i. FLOOI2ING ' ' Possible Points
1. Use Environmentally Prefereble Flooring: A) FSC•Certified or Reclaimed Wood, B) Rapidly Renewable
Flooring Materials, Cj Recycled-Content Ceramic Tiles, D) Exposed Concrete as Finished Floor or E) Recycled•
Content Carpet Note: FfowingAdhesives Musf Have <50 gpi VOCs.
^ a. Minimum 15%ofFloorArea
^ ~. ,.. ._...... . . .
b.Minimum30%ofFloorArea
~
^ c. Minimum 50%a of Floor Area ~ ` ~
-
^ _,_.. ..... . . !
d. Minimum 75% of Floor Area ;
^ 2. Thermal Mass Floors: Floor Covering Other than Carpet on 50% or More of Concreta Floors ;
3. Ftooring Meets SecUon 01350 or CRI Green Label Plus Reqvirements (50% Minimum) 2;
N. QTI~R Possible Points
^ 1. Incoiporate Green Points Checklist in Blueprints - Required R,
^ 2. Develop Homeowner Manual ot Green FeatureslBenefits ~ ~ i i
~
(
p
p
p
p 3. Community Design Measures & Local Priorities: See the Community Planning 8~ Design section in Chapter 4 ot the New Home Guidelines for measures.
Mabmum of 20 points for suggested measures. Locai requirements may also be listed here.
_ .. _... _ . . _ _._ _ __. . . _ _ _ .
_ _ __
Enterdesaiption here
_ __ _ . _ _. . __ _._ __ .
_ _ _ _._ _
EnterdescripGon here
__ . _,__ ___ _~__ .._.~.____.. ._._ _
__.._._.. .. ~ . . . . . . . ........ . .._._...... ~
EnterdesaipGon here ~ --- ---, ---- - . _ ..~__ ~ _ ,
. , ....~.. _., ..... . . _. ......_...~_ .._.. __._ ._.. . .__ .. ,... .., ,....._.. . _ ~ .,_.__..... ___ ..
Enterdescnptron here
4. InnovaGon: List innovative measures that meet the green 6uilding objectives of the Guidelines. Enter up to a maximum combined ~otal ot 20 pts. See Innovation
Checklist for suggested measures.
D Innovation in Community: Enter descriplion here ~~~ ~ ~~ ~~~~~~
•
p _ ._. . . . , _..._._ _ .. ... ..___.. . _. _
. ~._ , . _ _._ _ _ . . __ . , . _ _ _..
Innovation in Energy: Enter description here
.
p ~ ._. _.._. _
_ ._.. . . _. .
Innovation in IAQIHealth: Enter description here
p _ __ _.. _ __. _
_ . ..
~nnovation in Resources: Enter description here
..
p .
,~ _. _ ._~. _._. _.. .. .~ ._._ _._...
.._ _ __.___ . _ _ _...,. . __
Innovation in Water. Enterdescnption here ~ mw"~ ~~
Points Achieved from Specific Categories
Total Points Achieved
Project has not yet met the recommended minierium requirements
- To[a1 F'roject Score ofAt ~east SO Points
- F9rnim.um, points in specific categories: Energy (11), I/~Q'Neaith (S;, Resources (b), 4~`ater (3;
Single-Family GreenPoint Checklist 2006 Edition Page 4 of 4
~' ~
~
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
SECONDARY UN1T REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
Owner:
Property Address:
Dublin, California
Name of Development: Positano
This Secondary Unit Regulatory Agreement and Declaration of Restrictive
Covenants (this "AgreemenY') is entered into effective as of
("Effective Date") by and between the City of Dublin, a public body, corporate and
politic ("City") and
(the "Owner"). City and Owner are hereinafter collectively referred to as the "Parties."
Recitals
A. Owner is the owner of certain real property that contains a secondary
dwelling unit, which is located in the City of Dub~in, County of Alameda, State of
California and more particularly described in Exhibit A attached hereto and
incorporated herein by reference (the "Property"). The Property is located within a
residential development project area (the "Project") that was subject to the City's
Inclusionary Zoning Regulations (Chapter 8.68 of the Dublin Municipal Code), which
requires that developments consisting of 20 or more residential units must include a
specified percentage of units that are subject to affordability restrictions set forth in a
binding agreement recorded against the property.
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Exhibit 5
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B. The developer of the Project chose to satisfy its obligations through among
other things the construction of 41 secondary units on some of the residential lots in the
Project, including on the Prope~ty, and requiring the purchasers to enter into regulatory
agreements restricting the rents charges for the secondary units to affordable rents, in
accordance with the Inclusionary Zoning Regulations.
C. The Parties have agreed to enter into and record this Agreement in order
to satisfy the requirements described in the foregoing Recitals. The purpose of this
Agreement is to regulate and restrict the occupancy and rents of the Property's
Restricted Unit (defined below) for the benefit of the occupants. The covenants in this
Agreement are intended to run with the land and be binding on Owner and its
successors and assigns for the full term of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the Parties hereby agree as follows:
1. Definitions. The following terms have the meanings set forth in this Section
wherever used in this Agreement or the attached exhibits.
"Applicable Income Level" means the annual gross income level specified
below:
^ Very-low income: 50% or less of Area Median Income.
^ Low-income: 50% to 80% of Area Median Income.
^ Moderate-income: 80% to 120% of Area Median Income.
"Area Median Income" or "AMI" means the area median income for Alameda
County, California, adjusted for household size, published periodically by the California
Department of Housing and Community Development ("HCD") in Section 6932 of Title
25 of the California Code of Regulations ("Regulations") or successor provision
published.
"Eligible Household" means a household whose gross income does not exceed
the Applicable Income Level and that is otherwise eligible to rent a Restricted Unit.
"Qualifying Rent" means a monthly rent which does not exceed one-finrelfth of
thirty percent (30%) of the Applicable Income Level adjusted for household size, less a
utility allowance as specified by the Housing Authority of Alameda County.
"Restricted Unit" means the secondary dwelling unit on the Property that is
depicted in Exhibit B and that is reserved for occupancy at a Qualifying Rent in
accordance with and as set forth in Section 2.
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2. Use and Affordabilitv Restrictions. Owner 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 Owner
covenants that it shall not enter into any agreement that is inconsistent with such
restrictions without the express written consent of City.
2.1 Affordability Requirements. The Restricted Unit, if it is rented, shall be
rented at not more than Qualif o' n an ed n all leases a d col n acts wi h te~Iants ~Wner
shall ensure that language is c
executed by Owner that prohibits subleasing of the Restricted Unit.
2.2 Rents for Restricted Units. Rent charged to, and paid by, a tenant for
Restricted Units shall be not more than Qualifying Rent. Notwithstanding the foregoing,
no tenant qualifying for a Restricted Unit shall be denied continued occupancy of the
Restricted Unit because, after admission, such tenant's adjusted income increases to
exceed the qualifying limit for such Restricted Unit.
2.3 Non Discrimination~ Compliance with Fair Housina Laws. Owner shall not
discriminate against persons or groups of persons on account of race, color, religion,
creed, sex, sexual orientation, marital status, familial status, ancestry or national origin
in the lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property,
nor shall Owner or any person claiming under or through Owner 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 Property. Owner shall each ensure that language
prohibiting such discrimination shall be included in all deeds, leases and contracts
executed by Owner or its successors and assigns with respect to the Property. Owner
shall comply with state and federal fair housing laws in the marketing and rental of the
units in the Property.
3. Reportinq Requirements.
3.1 Tenant Verification. Owner or its authorized agent shall ob#ain from each
household prior to initial occupancy of each Restricted Unit, and on every anniversary
thereafter, written documentation verifying each tenanYs eligibility containing all of the
foflowing, including additional documentation as City may reasonably require
(collectively hereinafter "Written Verification"):
~ (a) Number of people in the household; and
(b) Total household income.
Owner or its authorized agent shall retain Written Verification for not less than three (3)
years, and upon City's request, shall make the Written Verification available for
inspection by City and shall provide copies of the Written Verification to City. Owner or
its authorized agent may require each Eligible Household to certify the Written
Verification. May 7, 2007
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3.2 Annual Report~ Inspections. Owner shall submit an annual report
("Annual Report") to the City in conformity with the requirements of Section 8.68.050.B
of the Inclusionary Zoning Regulations, together with a certification that the Property is
in compliance with the requirements of this Agreement. The Annual Report shall, at a
minimum, include the following information: (i) identification of the Restricted Unit by
address; (ii) the monthly rents charged and proposed to be charged; (v) the number of
people residing in the unit; and {h~the Annual Report,I a Icopy of theeWtltten Verp~ at oitn 's
request, Owner shall include wi
Owner obtained pursuant to Section 3.1 above, and such additional information as City
may reasonably request from time to time in order to show compliance with this
Agreement. Owner shall permit representatives of City to enter and inspect the
Property during reasonable business hours in order to monitor compliance with this
Agreement upon 24 hours advance notice of such visit to Owner.
4. Term of Agreement.
4.1 Term of Restrictions. This Agreement shall remain in effect in perpetuity_
4.2 Effectiveness Succeeds Convevance 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, unless this Agreement is
terminated earlier by City in a recorded writing.
4.3 Reconvevance. Upon the terminatio t~~ohelease and di~scha ge the terms
agree to execute and record appropnate instrume
of this Agreement; provided, however, the execution and recordation of such
instruments shall not be necessary or a prerequisite to the termination of this
Agreement in accordance with its terms.
5. Bindin U on Successors~ Covenants to Run with the Land. Owner hereby
subjects its interest in the Property to the covenants and restrictions set forth in this
Agreement. The City and Owner 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 Owner and City, regardless of any
sale, assignment, conveyance or transfer of the Property or any part thereof or interest
therein. Each reference in this Agreement to a specifically named party shall be
deemed to mean a reference to the successor of each such Party. Any successor-in-
interest to Owner, including without limitation any purchaser, transferee or lessee of the
Property (other than the tenants of the individual dwelling units within the Property) 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 any part thereof, shall conclusively be held to have been
executed, delivered and accepted subject to the covenants, restrictions, duties and
obligations set forth herein, regardless of whether such covenants, restrictions, duties
and obligations are set forth in such contract, deed, ground lease or other instrument. If
May 7, 2007
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any such contract, deed, ground lease or other instrument has been executed prior to
the date hereof, Owner 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.
Owner 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 in favor
of City.
6. Propertv Manaqement• Repair and Maintenance; Marketinq.
6.1 Manaqement Responsibilities. Owner shall be responsible for all
management functions with respect to the Property, 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. The contracting of management services to a
management entity shall not relieve Owner of its primary responsibility for proper
performance of management duties.
6.2 Intentionally Omitted.
6.3 Repair Maintenance and Securitv. Throughout the term of this
Agreement, Owner shall at its own expense, maintain the Property 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, Owner agrees to maintain the
Property (including without limitation, the residential units, common areas, landscaping,
driveways and walkways) in a condition free of all waste, nuisance, debris,
unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and i{legal
activity, and shall take all reasonable steps to prevent the same from occurring on the
Property. Owner shall prevent and/or rectify any physical deterioration of the Prope~ty
and shall make all repairs, renewals and replacements necessary to keep the Property
and the improvements located thereon in good condition and repair.
6.4 Intentionally omitted.
6.5 Intentionally omitted.
6.6 Intentionally omitted.
6.7 Intentionally omitted.
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6.8 Praperty Damaqe or Destruction. If any part of the Property is damaged
or destroyed, Owner shall repair or restore the same as soon as practicable, consistent
with the occupancy and rent restriction requirements set forth in this Agreement.
7. Recordation~ No Subordination. This Agreement shall be recorded in the Official
Records of Alameda County. Owner hereby represents, warrants and covenants that
with the exception of easements and restrictions of record, 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. If
at the time this Agreement is recorded, any interest, lien, or encumbrance has been
recorded against the Property in position superior to this Agreement, upon the request
of City, Owner hereby covenants and agrees to promptly undertake all action necessary
to clear such matter from title or to subordinate such interest to this Agreement
consistent with the intent of and in accordance with this Section, and to provide such
evidence thereof as City may reasonably request.
8. Transfer and Encumbrance.
8.1 Restrictions on Transfer. During the term of this Agreement, except as
permitted pursuant to this Agreement, Owner shall not make or permit the occurrence of
any conveyance, sale or lease (except as to individual dwelling units) of the Property
without the prior written consent of the City; provided however City sha(I not withhold its
consent to the sale, transfer or other disposition of the Property, in whole or in part,
provided that (i) the transferee expressly assumes all obligations of Owner imposed by
this Agreement; (ii) the transferee executes all documents reasonably requested by the
City with respect to the assumption of the Owner's obligations under this Agreement;
and (iii) the Owner has paid the City a Affordable Home Ownership Fee to cover the
City's costs associated with the transaction. The amount of the Affordable Home
Ownership Fee is currently $1,500 per transaction, and the applicable amount shall be
as established from time to time by the City Council
8.2 Encumbrances. Owner agrees to use best efforts to ensure that any deed
of trust secured by the Property 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 defauft issued to Owner concurrently with provision of such notice to Owner
{provided howeve~, 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 Owner within the same period of time provided to Owner for such cure,
extended by an additional thirty (30) days.
8.3 Mortqaqee 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 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.
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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 Property that such violation has occurred.
9. Default and Remedies.
9.1 Events of Default. Owner's failure to cure any default in performance of
Owner's obligations under this Agreement within thirty (30) days following City's delivery
of a notice of default shall constitute an Event of Default hereunder and shall entitle the
City to proceed with any of the remedies described below. Notwithstanding the
foregoing, if the default is such that it is not reasonably capable of being cured within
thirty (30) days, an Event of Default shall not arise hereunder if Owner commences to
cure the default within 30 days and thereafter prosecutes the curing of such default to
completion with due diligence and in good faith, but in no event later than ninety (90}
days after receipt of City's notice of default or such longer period as City may agree to
in writing.
(a) Bring an action for equitabfe relief seeking the specific performance
of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing
any violation of such terms and conditions, and/or seeking declaratory relief;
(b) For violations of obligations with respect to rents for Restricted
Units, impose as liquidated damages a charge in an amount equal to the actual amount
collected in excess of the Qualifying Rent;
(c) Pursue any other remedy allowed at law or in equity.
9.2 Remedies Cumulative. 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. Owner shall defend (with counsel approved by City), 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) arising from or in connection with
or in any way related to: (i) Owner's performance or failure to perform any obligafion
required by this Agreement; or (ii) any act or omission by Owner, or any of Owner's
contractors, subcontractors, agents, employees, licensees or suppliers related to the
Property, except to the extent arising from the gross negligence or willful misconduct of
such Indemnified Party. The provisions of this Section shall survive the expiration or
earlier termination of this Agreement.
11. Miscellaneous.
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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 Owner of any provision of this Agreement or to exercise any election
contained herein or any right, power or remedy hereunder shall be construed as a
waiver of any other provision or any succeeding breach of the same or any other
provision hereof or a relinquishment for the future of such election.
11.3 Notices. Except as otherwise specified herein, all notices to be sent
pursuant to this Agreement shall be made in writing, and sent to the Parties at their
respective addresses specified below or to such other address as a Party may
designate by written notice delivered to the other parties in accordance with this
Section. All such notices shall be sent by:
(a) personal delivery, in which case notice is effective upon delivery;
(b) certified or registered mail, return receipt requested, in which case
notice shali be deemed delivered upon receipt if delivery is confirmed by a return
receipt;
(c) 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 confirrned by the delivery service;
(d) facsimile transmission, in which case notice shall be deemed
delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly
delivered by first-class or certified mail or by overnight delivery, or (b) a transmission
report is generated reflecting the accurate transmission thereof. Any notice given by
facsimile shall be considered to have been received on the next business day 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
Owner:
At the address of the property
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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-Venturers. 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 bv the City. Except as may be otherwise specifically provided
herein, whenever any approval, notice, direction, consent or request by the City 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 City Council.
11.7 Non-Liabilitv of City and Citv Officials, Employees and Aqents. No
member, official, employee or agent of the City shall be personally liable to Owner 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 Owner or its successor or for any
obligation of City under this Agreement.
11.8 Headinqs; Construction. The headings of the sections and paragraphs of
this Agreement are for conveniehce 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.
11.10 Governinp Law. This Agreement shall be construed in accordance with
the laws of the State of California without regard to principles of conflicts of law.
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 reasonabfe attorneys' fees and costs incurred in such action.
11.12 Severabilitv. 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 shail not be affected or impaired thereby.
11.13 Entire Agreement; Exhibits. This Agreement contains the entire
agreement of Parties with respect to the subject matter hereof, and supersedes al{ prior
oral or written agreements between the Parties with respect thereto. The exhibits
attached hereto are incorporated herein by this reference.
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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.
SIGNATURES ON FOLLOWING PAGE.
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IN WITNESS WHEREOF, the Parties have executed this Agreement effective as
of the date first written above.
OWNER
CITY OF DUBLIN
By:
Joni Pattillo
City Manager
Attest:
Gaylene Burkett
Deputy City Clerk
S/GNATURES MUST BE NOTAR/ZED.
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JJ°~ L~~l~ J ~ ;
Exhibit A
PROPERTY DESCRIPTION
(Attach legal description.)
~3 4~ 5C-
Exhibit B
DIAGRAM SHOWING LOCATION OF RESTRICTED UNIT
(Attach diagram.)
5~ ~ ~ ~~-~
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Exhibit C
ANNUAL REPORT FORM
(Attach Form.)
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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 AMENDED AND RESTATED
SUBSEQUENT AFFORDABLE HOUSING AGREEMENT
FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES
IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS
Dubiin RE Investors, LLC and Braddock and Logan Group II, L.P.
Subsequent Phase (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 , 2010, by and between the City of
Dublin, a municipal corporation (hereafter "City") and Dublin RE Investors, LLC, a California
limited liability company, and Braddock & Logan Group II, L.P., a California lirnited partnership
(collectively, "the Developer").
1. Pursuan# to the Amended and Restated Subsequent Affordable Housing
Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of
Constructing Inclusionary Housing Units, dated as of , 2010, 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 "ProjecY') , 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 AgreemenY'). 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.
Exhibit 6
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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 of the development of the Proj ect. The Agreement also obligates the
Developer to make a Community Benefit Payment, as described in the Agreement, prior to
issuance of building pertnits for each residential unit (excepting Second Units) within the
Subsequent Phase.
4. 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.
5. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
CITY OF DUBLIN
By:
Attest:
Joni Pattillo, City Manager
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
DUBLIN RE INVESTORS, LLC
a California limited liability company
By: Braddock and Logan Services, Inc.
a California cotporation
Its Manager
By: ~
Name ~st~ ~ ~ 2y, 4~
Its: ~iv~,~L,~{-
BRADDOCK & LOGAN GROUP II, L.P.
A California limited partnership
By: Braddock and Logan Services, Inc.
a California corporation
Its General Partner
By: ~.
Nam : ,sY 4 ~ ~.P i,,,~
Its: ~~ ~~~~,~