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HomeMy WebLinkAboutItem 6.4 Positano Amend Housing Agmt Attch 7-10 l~{6 ~a50 AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. .First Phase (247 Residential Lots) of the Fallon Village Project THIS AGREEMENT is hereby entered into. this,~~`day of,~(~, 2007 by and between the City of Dublin ("the City") and Dublin RE Investors, L.L.C., a California limited liability company ("the Developer"). Recitals 1. 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. 2. 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. 3. 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, 2007 at $86,640 per unit required but not built. If fees are paid in lieu of construction, developers are still required to construct 60% of the obligation. 4. Developer is the owner of 488.2 acres of real property in the City of Dublin generally located east of Fallon Road and more specifically described in Ezhibit 1 (the "Property"). 5. Developer desires to construct a residential project on the parcel that consists of 1,043 for-sale units (collectively "the Project"), and the Project is subject to the Regulations. 6. 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 lots, and Developer has submitted an application for Site Development Review ("SDR") approval for an initial phase, which includes 2471ots, and the City is processing the SDR ("the Approvals"). Developer also intends to shortly file the first of "multiple final maps" based on the tentative subdivision map, which mould create 247 residential lots. Fallon Village (Initial Phase) Affordable Housing Agreement_052107 (2) Affoi First Phase of Positano Project 1 May 24, 2007 ATTACHMENT 7 14~ Faso 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. . ofd site affordable project, 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. 12. 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 Fallon Village (Initial Phase) Affordable Housing Agreement_052107 (2) AfI'o~ First Phase of Positano Project 2 May 24, 2007 148~~5n 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. 13. In response to the direction from the City Council, Staff and the Developer have been working diligently to prepare an affordable housing agreement that would set forth the Developer's obligations as to the entire Project, but an agreement has not yet been reached due primarily to uncertainties about the off-site affordable project. 14. The Developer has therefore proposed that the City initially enter into an affordable housing agreement for the first phase of the Project, which consists of 247 residential lots and the location of which is shown on Exhibit 2 ("the First Phase"), and the parties would continue negotiating the definitive affordable housing agreement for the Project. 15. The City is agreeable to such a phased approach, provided that the First Phase agreement satisfies the entirety of the First Phase's obligations under the Regulations and provided that Developer specifically agrees that the City may refuse to record additional final maps for the Project that would create residential parcels in excess of the 247 residential pazcels in First Phase and that it will enter into an affordable housing agreement for the remainder of the Project prior to any further development outside of the First Phase. 16. For the 247 units in the First Phase, the Developer's inclusionary zoning obligation under the Regulations would be 31 units (247 times 0.125 equals 30.875}, and it would be permitted to pay fees in lieu of construction to satisfy the obligation as to 12 units (31 times 0.4 equals 12), leaving amunt-build obligation of 19 units. 17. Developer has proposed an alternate method to satisfy its 31 inclusionary unit obligation (a) by constructing in the First Phase (i) 13 integrated inclusionary units on 3,200 square foot lots, which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), and (ii) 13 1-bedroom, secondary dwelling units, which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"); (b) paying fees in lieu of construction for the remaining 5 unit obligation; (c) making a community benefit payment prior to issuance of each building permit equal to $958.77 (which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); (d) including reaz yazd landscaping and energy efficiency measures to reduce the homeowners' cost of living in the 13 integrated inclusionary units; and (e) incorporating green building principles into the 26 inclusionary units. 18. The City Council hereby finds that the alternate method of complying with the Regulations for the 247-unit First Phase of the Project 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 successol•s and assigns hereby agree as follows: Fallon Village (Initial Phase) Affordable Housing Agreement_052] 07 (2) Affo~ First Phase of Positano Project 3 May 24, 2007 1~9~pd.5v ~~ 1. Definitions and Interpretations. Terms used in this Agreement shall be defined asset forth in Chapter 8.68 of the Dublin Municipal Code. 2. Limited Applicability of Affordable Housing Agreement. This Agreement shall be deemed to satisfy the requirement under the Regulations and Condition 2 of the VTM Resolution for the Developer to enter into an affordable housing agreement for the Project prior to approval of Site Development Review and the recordation of the first phased final map, provided, however, that 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 First Phase shall require either an amendment to this Agreement or a subsequent affordable housing agreement ("the Subsequent Agreement") setting forth the manner in which the Regulations.will be complied with for the remainder of the Project. 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 247 residential parcels in the First Phase) pursuant to the tentative map approved by the VTM Resolution until such time as it has entered into the Subsequent Agreement. 3. Developer's Compliance with Affordable Housing Obligation. Developer intends to complete the First Phase in fourteen sub phases plus 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. Exhibit 3 shows the location, and type, of the Inclusionary Units to be constructed within the First Phase. All Inclusionary Units identified on Exhibit 3 shall be constructed concurrently with the market-rate units surrounding the Inclusionary Units.. The City finds that the preliminary construction schedule attached hereto as Exhibit 4, which shows the completion of the 26 Inclusionary Units in the initial three phases along with 78 market rate units, constitutes construction of the Inclusionary Units concurrently with the market rate units as required by Section 8.68.030 of the Regulations. Notwithstanding the foregoing, Developer shall be permitted to deviate from the attached preliminary construction schedule, provided that the Inclusionary Units still are constructed concurrently with the market rate units as required by Section 8.68.030 of the Regulations. If the Building Official or Community Development Director determines that the Inclusionary Units have not been or are not being constructed concurrently with the market-rate units as required by this Section 2, the Building Official shall withhold further issuance of building permits in the Project until construction of the Inclusionary Units in the phase has been completed to the satisfaction of the Community Development Director. 4. In-Lieu Fees. Developer shall pay in-lieu fees to fulfill its obligation to construct 5 of the 31 inclusionary units at the time, in the amount, and as otherwise required by the Regulations and Council Resolution No. 56-02. As required by the Regulations, the entirety of the fee shall be paid at time of issuance of the first building permit in the First Phase. Notwithstanding anything to the contrary in the foregoing, the parties agree that, should the parties enter into. the Subsequent Agreement, the monies paid by Developer pursuant to this Section will be refunded to Developer, with the City retaining any accrued interest, from the City's Affordable Housing Fund, unless the Subsequent Agreement specifies otherwise. Fallon Village (Initial Phase) Affordable Housing Agreement_052107 (2) Affoi First Phase of Positano Project 4 May 24, 2007 l5a ~a5~ 5. .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 in the First 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. Inclusionary Unit Design, Location, and Size. A. Exterior Materials and Exterior Architectural Design. The exterior materials and exterior azchitectural design of the Inclusionary Units shall be consistent with the First Phase'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. The "Diagram and Location of Inclusionary Units in the First Phase of the Project," attached hereto as Exhibit 3, shows the location of the Inclusionary Units as proposed by the Developer, which the developer hereby agrees to construct as shown, and the City hereby finds that the units as shown are reasonably dispersed through the Project as required by Section 8.68.030.E of the Regulations. C. Rear Yard Landscaping. Developer's Site Development Review submittal shows fully landscaped reaz yards (including turf, shrubs, trees, irrigation, and a usable pad area) for each of the Integrated Units shown in Exhibit 3, and Developer hereby agrees to complete the rear yard landscaping as shown in the submittal (or as revised in the SDR approval) prior to occupancy of the Integrated Units. D. Green Building Principles. Construction of the Integrated Units and Secondary Units shall incorporate Green Building Principles by meeting the minimum requirements for a green home set forth in the "Single Family CrreenPoint Checklist" attached hereto as Exhibit 5. 7. Unit Bedrooms and Size. The size of the Inclusionary Units shall be consistent with the Site Development Review approval of the Planning Commission, provided however, that minor changes to unit size may be approved by the Community Development Director through a Site Development Review Waiver. The developer proposes to provide: A. 8 very low-income units (4 four-bedroom Integrated Units and 4 1- bedroom Secondary Units}; B. 61ow-income units (3 four-bedroom Integrated Units, and 3one-bedroom Secondary Units); and C. 12 moderate-income units (6 four-bedroom Integrated Units, and 6 one- bedroom Secondary Units). Fallon Village (Initial Phase) Affordable Housing Agreement 052107 (2) AfI'o~ First Phase of Positano Project May 24, 2007 X51 ~ a5o The City hereby finds that, while this breakdown does not reflect the range of numbers of bedrooms provided in the First Phase as a whole, as required by Section 8.68.030.E of the Regulations, the Developer's alternate method of compliance meets the purposes of the Regulations. Ensuring Affordability. A. Integrated Units. i. Sales Price and Marketing of Integrated Units. Developer shall sell the Integrated Units at sales prices that are affordable, as applicable to the individual buyer, to persons with very low-, low-, or moderate-incomes as defined in the Regulations. The maximum sales price shall be adjusted for household size and income (except that the income for very-low income households shall be assumed to be equal to the maximum income within the very-low income category for the buyer's household size regardless of buyer's actual income). Additional detail on the manner of calculating sales prices for the Inclusionary Units is set forth in the Layperson's Guide to the Inclusionary Zoning Ordinance Regulations, adopted by the City Council on June 1, 2004 and attached hereto as Ezhibit 6. All units shall be marketed and sold consistent with the Regulations. ii. Marketing Plan. Developer shall prepare and receive City approval of a Marketing Plan as required by Section 3.1 of the Layperson's Guide to the Inclusionary Zoning Ordinance Regulations, adopted by the City Council on June 1, 2004 and attached hereto as Ezhibit 6, prior to issuance of the first building permit in the First Phase (excluding building permits issued for model homes). iii. Resale Agreements. Developer shall require the initial buyer of each Integrated Unit to execute, and record against the applicable property, a Resale Restriction and Option to Purchase Agreement and Performance Deed of Trust (collectively "Resale Agreement") in substantially the form attached hereto as Ezhibit 7. This Affordable Housing Agreement shall serve as the agreement required by Section 8.68.030 of the Regulations. In the event that the initial buyer participates in other City housing programs, such as the first time home buyer loan program, the City may approve the use of other resale restriction agreements. B. Secondary Units. i. Re ug_ latorv 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 form attached hereto as Ezhibit 8. 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. C. 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 Fallon Village (Initial Phase) Affordable Housing Agreement 052107 (2) Affoi First Phase of Positano Project 6 May 24, 2007 /5d o{ ~.Sp ~~ 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 First Phase are constructed, sold, and subjected to resale restrictions approved by the City pursuant to the terms of this Agreement and the parties have entered into the Subsequent Agreement. 10. 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 9, and City shall cause the Memorandum to be recorded in the Official Records of Alameda County upon its execution. 11. 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 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 Parry and the Property hereunder and each other person succeeding to an interest in the Property. 12. Assignments and Transfers. A. Ri t to Assign{tc "17.1 Right to Assign " u 2}. 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 specifically acknowledge the obligation under Section 2 of this Agreement to enter into a Subsequent Agreement prior to any development on and approval of subsequent final maps that include any portion of the Property except for the First 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 or provided evidence satisfactory to the City Manager demonstrating that the remaining obligations have been allocated between Developer and Affiliate. Fallon Village (Initial Phase) Affordable Housing Agreement_052107 (2) Affoi First Phase of Positano Project 7 May 24, 2007 ~53~ ~~p B. Approval and Notice of Sale, Transfer or Assignment{tc "17.2 Release Upon Transfer " \12}. The City Manager shall. consider and decide on any transfer, sale or assignment within thirty (30) days after Developer's notice thereof, provided all necessary documents, certifications and other information areprovided to the City Manager to enable the City Manager to determine whether the proposed Transferee can perform the Developer's obligations hereunder. Notice of any such approved sale, transfer or assignment (which includes a description of all rights, interests and obligations that have been transferred and those which have been retained by Developer) shall be recorded in the official records of Alameda County, in a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. C. Effect of Sale. Transfer or Assignment. Developer shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to Section 12.a of this Agreement;.provided that: a) such sale, transfer or assignment has been approved by the 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. 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 or in violation of the rights of the City hereunder. Fallon Village (Initial Phase) Affordable Housing Ageement_052107 (2) Affoi First Phasc of Positano Project 8 May 24, 2007 B. Take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants, conditions and restrictions of the Developer under this Agreement. C. If Developer transfers any portion of the project in bulk and a Transferee defaults under this Agreement, the City shall exercise the foregoing remedies only with respect to the defaulting Transferee and its portion of the project; and so long as Developer has not otherwise defaulted hereunder, the City shall not seek to exercise any rights and remedies against Developer. 16. Attorneys' Fees. If legal action is necessary to enforce any provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and legal costs. 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. 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. 18. Coruorate 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. 19. Notices tc \I 1 " 23. 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 IZE Investors 4155 Blackhawk Plaza Circle, Suite 201 Fallon Village (Initial Phase) Affordable Housing Agreement_052107 (2) ~'p~ First Phase of Positano Project 9 May 24, 2007 i55~a~~ 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 ifmailed, 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 of the Project Exhibit 3 Diagram of Location of Inclusionary Units in the First Phase of the Project Exhibit 4 Preliminary Construction. Schedule Exhibit 5 Single Family GreenPoint Checklist Exhibit 6 Layperson's Guide to the Inclusionary Zoning Ordinance Regulations Exhibit 7 Resale Restrictions and Option to Purchase Agreement. Exhibit 8 Secondary Unit Regulatory Agreement Exhibit 9 Memorandum of 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. i CITY OF DUBLIN Dated: w G7 gy: ~. , Ric and C. Ambrose, Manager Attest: Fallon Village (Initial Phase) Affordable Housing Agreement_052107 (2) Affo~ First Phase of Positano Project 10 May 24, 2007 i~ ~~~ DUBLIN RE INVESTORS, LLC By: Braddock and Logan Services, Inc. a California corporation ' Its Manager: By: ~- - P ~-C s r o E.~ Fallon Village (Initial Phase) Affordable Housing Agreement_052107 (2) Affo~ First Phase ofPositano Project 11 May 24, 2007 i.~~~a~ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ~!S"rK.t'i On ~/~.5~07 before me, IV~e-t.{ ~. EUYIQfZ~t-(, (~ t~G`-~R-~l 'P~(3!_IC Date ~ Name and Title of Officer (e.g. ' ne Doe, Notary Public? personally appeared ~ L-FF 1-~~('~ tSC.~ Name(s) of Sgner(s) personally known to me NANCY E. EMBREY ConuNabn f 1 S1~ }~ ~ WWarY RtbNC - CalloiNo CorNto CgdJ CoisMy NN Carom. ExPw'~.An rfr ^ (or proved to me on the basis of satisfactory evidence) to be the person( whose name(1c) isfa~e subscribed to the within instrument and acknowledged to me that he/sb~eki~executed the same in his/he'?~tk8ir authorized capacity(aes), and that by his~4heir signature(k) on the instrument the person(, or the entity upon behalf of which the person(9~' acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above g Signature of Noary Public OPTIONAL Though the information below is not required bylaw, it may prove valuable to persons retying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document G`~ ~ p~~'~~ ~~~~~~''`~ Title or Type of Document: Q-~~~sr,~~(Q t.~p,'~ ~~~"" r0.X~-cam \( `-~~ 6A 1 Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited Cl General _ ^ Attorney in Fact ' Top of thumb here ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Number of Pages: Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing • ... Top of thumb here ®2006 Natbnal Notary Association •9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 97313-2402 hem No. 5907 Reorder: Call Toll-Free 7-80o-676-6827 ~ss~a~ EXHIBIT 1 Property Description of the Property M~ . K N ~~~ n _..~... _..____.._..J ~~~ w s; %€ & °io 0 €~ ° D U~~ '°~~ N g~S~ O z~ ~9 0 1 ~~ r ~ ~,~ O A gd z ~~ w a d ~ ~ ~ r~'-- N 1 A ~~ ~~ ~. /i i~~~~~~ ,A ~,\,~ f t ~T.. ~ , ~, ~!- ;~ ~. ~r .S~', `~~> ti, Irr ~ ,~ ~ . ` ~ . / ry ~ ~' . '~ F _~ ~ ~,; _~ _- _~ _ ,; i ~/ ' ,j -~ >> >, ; .. ~ `~~ ~.`. ~~, \ ~'~: a ' ~ ~ _ '~~ ` ~~ = ~ ~~ ~~ y 1 ! v~~ ~~~ ~~ V ' i t ~ ~ ~ ~ ~ /., . ~'~. ~ '.- j ~ L ~ J _~~„ ~ ~ ~~ ~~ - ~~- ~'~t l ~ r ~ ~/ ~ f;' ~ .~ y' ~ ~"~, / ~... .~ ~~ ~ .... (: ~ J ? r ' °z , n . ~ ~ ~ ~~ ( ~ ~ ~ ~ f' ~` 1 ~ ,.. ~J"' ! i(J s 'J: w .J3 t~ .~..~ i ~,:,., - ~ ~ ~ ~ M r. ~ ~, J __e~. ~` ~ _ >, ~. ' - T _' ~ .,., y .a.. v. l"v ~ ~ ~ .-.t . "~ a ! ~ a"""'~ ...~ ~~r Faso __ -:. _. __ _ ;: , -n J ~' Lh t/: y~ -. ,- ., ., ... _ :g :J Li. 0. u1. c7. a.. { .. ~... ~ 1. .. :^.. z... ~ .. s I t«. you * ~. Positano First Phase Preliminary Construction Schedule MODELS nccme 4evei . .. . _ :, ~ ' "~ :T' ~~ Nei~~ttba~'h,oDCt.A 4 4 r~tei ~~t~t~rsho~od~B~~: 4'; __ 4 4 Totalt 0 0 0 0 8 8 PHASE ONE _. iaco ,.. F °av~i -~ I~tK~~a€e`- Nei ~~borhood A '~~ .:; ~ , ~,'° ` ,_ ` 3 3 ~e~,R~#~-_Hei ` 'bor~hoid~ 11 11 ;13edrAbm-BMR ' ~- - 1 1 2 4 4 e~co~tda Unit 1 2 2 5 5 tai' 2 3 4 9 24 33 Ptll~~,r ;lritha a of Phase Elhits , 6% 9% 12% 27% 73% 100% PHASE TWO In~On1~ 'S~e . .. ~=i;'t..i~E'"'r~ , t . , ; :` .. at , #te = [Vei lborhood~A ,' 14 14 Niaiitet~{~t~;-~ ` ei ~bor~iood:°B 12 12 `Be`dkoo[i'-~~MNR '~` 3 1. 1 5 5 _a)cgc-da., ~Utilt. 2 0 2 4 4 ~otak ~'. ' S 1 3 9 26 35 P~e;tjf.4 e.e#.P-1ase~Uot~a`~ 14% 3% 9% 26% 74% 100% PHASE THREE ipcttme.L•evel~ Mate Rate-'Nel l~,ba'hood~-A V 16 th ., 16 I~Ia~Ice~Rat~'~= Nei t~bew#~t~ed.B 12 12 Belroorii'BMR. 2 1 1 4 4 @cenda Unil:; 3 1 0 4 4 btal ~;~' ' 5 2 1 8 28 36 P@t`G `° a o#'Ph~s@ U~4ts 14% 6% 3% 22% 78% 100% PHASE FOUR arket`,Rate -Nei hbort4aod B 12 12 PHASE FIVE ,. _„ ,,,. ,. cc~~xlie L.~~el' 6 ,. _,. ~'ke1:"Ra#e - Nei k-horhood.B 12 12 PHASE SIX PHASE SEVEN incometkeuer 12 Exhibit 4 63 ~ asp PHASE EIGHT PHASE NINE PHASE TEN PHASE ELEVEN PHASE TWELVE PHASE THIRTEEN PHASE FOURTEEN LIN LOTS /~U ~~~ Single Family GreenPoint Checklist date: '/~~~ The GreenPoint checklist trades green features incorporated into the home. The recommended mini- mumrequirements for a green home are= Earn a total of 50 points or more; obtain the following minimum points per category: Energy (1 t), Indoa Arc Quality/Healih (5), Resources (6), and Water (3); and meet the prerequisites A.3.a (50% construction waste diversion) and N.1 (Incorporate Green Points checklist in blueprints). The green building practices listed below are described in the Nero Home Construction Green Building Guidelines, available at www.buflditOreen.orp. ~_ $ ~ ~ E ~ ~ E ~ =: ci w g 3 A~BITE ~, -.~ _.: !' PossiblePoinfs 1. rotect atlve Sol and Mtn ize Disruption of Existing Plants & Trees {] a. Protect NelNe Topsail from Erosion and Reuse after Construction I ~ ~ i _ 1 ^ b. Limit and Delir~le Constnrctian Footprint fa Maximum Protedion ____ ~i __ _ ~ ~ ~ 1 2. Deconstruct lrstead of Derrroltshing Existing Buildings On Stte { f { 3 j _ 3. Recycle Job Sfte Construction Waste (Including Green Waste) ^ a li,9nimwn 50% Waste Drversion 6y Weight (Recycling or Reuse) -Required j 1 { Y ^ b. Minbmrm 65% Diversion by Weight (Recycling a Reuse) v _ _ ~~_ t 2 -~ -' - ^ c. Minimum 80% DNersion by Weight (Recycling a Reuse) ( { ~ 2 I 4. Use Recycled Confetti Aggregate (Minimum 25%) ^ a. Walkway and Driveway 1 ^ b. Roadway Base I 1 B LANDSCAPING ' Possible Points !^ ^ ^ 1. ConsWd Resouroe-Efficient Landscapes a. No Invasive, Spades Listed by Cal-IPCAre Planted b. No Plant Species Wg Require Hedging c. 75% of Plants Are CalHomia Natlves a Mediterranean Spades ~ ; J_~'i 1 , r"`_-' ~_~ { 1 2 Use Fire-Safe Landscaping Techniques 1 j { I 3. Minimize TuA Areas in Landscape Installed by Builder ^ ^ a. AO Turf WRI Have a Water Requlement Less than a Equal to Tcll Fescue b. Turf Shafl Not Be Installed on Slopes Exceadirg 10% or in Areas Less than 8 Feet Wide __{ ~ ^ ~_~ t 2 . ____...---I------ { 2 ^ ^ c Turf is <33% d landscaped Nee d. Turf is <1D% of Landscaped Area __ _ ~~~ ~ 2 2 ~ 4. Plant Shade Trees I i i { 1 5. Implement Hydnxuming: Group Plants try Water Needs { { 1 ~ ^ 6. Install HIgh~Etftcienry Irrigation Systems a. System Uses Only l.our•Flow Drip, Bubblers, aLow-flow Spdnklers b. System Has 5mar1(Weather-Based} Controllers j 1 ~ I 2 T. Apply Two inches of Compost in the Top 6 to 12 Inches of Soil j , 2 tf. Mulch All Plarding Beds to the Greater of 2lnches a Local Water Ordinance Requirement j I 1 9. Use 50%Salvaged orRecycled-Content Materials for 50!6 of Non-Plant Landscape Elements j j 1 { 10. Reduce Light Pollutlon try Shielding fixtures arrdlor Directing Light Downward 1 { { 1 { C; FOUNDATION - Possible Points 1. Incorporate Recycled Flyash in Concrete ^ a. tipnimum 2096 Flyash ; L _ 1 _~ ^ b. Minimum 25%Flyash '---I ~ ~ I { Z. Use Frost-Protected Shallow Foundation in Cold Areas (C.EC. Climate Zone 16) ~ ; 3 { 3. Use Radon Resistant Construction (in At-Risk Locations Only) j j 1 j { DrSTRUCTUi12AL FiRAME & BUILDING ENVELOPE i Possible Points --- 1. Apply Optimal Value Engineering ^ a 2x4 Studs at 241nch On Center framing j j 1----I Q b Door and Window Headers Sized for Load { ~ J I 1 { ^ c. Use Only Jadc end Cripple Studs Required fa load I i { I { Single-Family GreenPoint Checklist 2006 Edition Page i of 4 Exhibit 5 ~~~ ~~~~~ L` t ~ ~- a m ~ ! . ® y E iii °~' m N ry U W S ~ ~ 2. Use Engineered Lumber ~ a. Beams and Headers { ~ 1 I ^ b. Insulated Engineered Headers ... _._-._.._.___...__ ._._.___. 1 I I _..__...-_ - __._.. __.._.__. __ .. ..__--•- --._-..L._..~._. Q c Wood t,loisls or Web Trusses for Floss i I .___ ~ 1 i-.__ ' ^ dWoodl-Joists or Rafters 1 ~ ^ e. Engineered a Finger,lainted Studs for Vertical Applications _ i~~ { ~ - _ _ _ ______ 1 { 3: Use FSC-Certified Wood ^ a Dimer~ionai Shrds: Minimum 40% ~1. ~__.~_~l._._?___!~. ^ b Dimensions Skrds: Minimum 70°~ j ~ Y 2 i ^ c Panel Produds:lufinarwm 40% ._._ _ __. ~ _ _ 1 ~ ^ d. Papal Products: Minhnum 7t)96 --- -- ~I ----- 1 I 4. Design Ene Heels on Trusses SX of Attic insulation Hal M at Outside Edge of Exterior Wail) 1 j I ' 3. De n Trusses to Accommodate Ductwork 1 6. Usa Oriented Strand Board (OSB) ^ b. Sheathing { I I 1 I 7. Use Recyclad•ConterdSt~el Studs for 9096 of Irderior Wall Framing I ~ I 1 { 8. Use Solid Wail Systems (Includes SIPS, ICFs, & Any Non•Stick Frame Assembly) ^ 8. ROOrS ~ 2 L ? { ^ b. w~ls Y ~--- z ~ ---_ ^ c Roofs ~ 2 ~ ~ 2 1 9. Thermal Mass Walls: 5ftfdnch Drywall on All Irderkx Walk or Walls Weigh more than 401bfcu.R { 1 { ~ 10. Design and Build Structural Pest Controls 0 a. Install T~mne Shields & Separate Ati Extedor Wood-to-Conaote Cannedions _ 1 by Metal or Plastic FastenerslDividers _ ^ b. All New Plant Have Trunk Base, a Stem Located At Least 38 Inches from Foundation _ 1 { 11. Reduce Poliutlon EnterMg the Home from the Garage ^ a. Tightly Seel the Air Barrier between Garage and Living Area j ! 1 ~ ~ ^ b. Install Separate Garage Exhaust Fan { 1 I _ _ { 12 Install Overhangs and Gutters ^ a tufinlmum 16~Indt Overhangs and Guters I : 1 1 { ^ b. Minimum 24-Inch Overhangs and Gutters ---- _-_--.--. _ . _.. .__ I 1 ! { .-_-. __-. _ .. E::EX'TERIOR FIIVISH ' 'Passible Polnls '` 1. Use Recycled•Canlent (No Vf in Plastic) or FSC-Certified Wood Decking { { { 2 j ~ 2 Install a Drelnage Plane (Rain Screen Wall System) { j 2 ' 3. Use Durable and Non•Combuetible Siding Materlak ! 1 ~ ' 4. Select Durable oral Non•Combustible Rooting Matertals { 2 f F PLUMBING Possible Points 1. Disbibute Domestic Hot Water E1Ficiently ^ a Insulate Hot Water Pipes from Wier Healer to ICtchen ~ ~_I.__~..L,1.__. { ^ b. Insulate All Hot Water Pipes OR Ireton On-Demand Hot Water Circulatlan Syst~n I 1 ~ i 1 in canjundian with F. i.a Insulate Hot Water Plies from Water Heater to btchen _ I ~-I.---_ ^ c Logte the Water Heater within 25 feet of Ab Hot Water Fixtures and Appnances _{~-i~__-_I 1 ^ d use Engineered Parapet roping { ; i 1 ' 2 Install Onty High Efficiency Toilets (Dual•Flush or X1.3 gpf) - _ - ----- f_ ~ __ ___( 3 G:'APPLL4IVCES ' RossiMe Points 1. Install ENERGY STAR Dshwasher a. ENERGY STAR 1 ~ ~ I ~ 0. Dishwasher Uses No More than 6.5 GalbnslCycle { 1 ; 1 ' 2 Install ENERGY STAR Clothes Washing Machine with Water Factor of 6 or Less I 1 , j 3 3. Insfell ENERGY STAR Refrigerator ^ a FJJERGY STAR 1596 above Federal Minknum 1 i . ~ ~ ^ b. Su -Efficient Home Appliance Tier 2 26% above Federal Minimum ___.._ ~~_.. -_ ---,----. 1 {~ I I 4. Install Built•In Recycling Center ! ; Z i Single-Family GreenPoinf Checklist 20D6 Edition Page 2 of 4 r-~- ~ l~c~ a~°~ L`$EATIIYG ,VENTLI:i1TION & AIIt'CONDI'CiONIIYG Possible Pants 1. Design and tnstell HVAC System to ACCA Manual J, q and 5 Recommendations ! 4 } ^ ^ 2 Install Sealed Combustion Units a Furnaces b. Water Heaters ~ ~.._.~._- I ~ 2 ~ __ _ ~ .. z ~ _ ! ~ 3. No Fireplace ar Sealed Gas Fireplace with Efficiency Rating Not less Than 60'/• I ~ 1 4. Install ENERGY STAR Ceiling Fans with CFLs in Living Areas and Bedrooms I 1 { i i ~ ^ ^ 5. Install bleehaNcal Ventilation System For MgMtlme Cooling (Points are Cumulative up to 3} a While Hausa Fan b. Automaticaiy CantroNed Integrated System c. integrated System with Variable Speed Control 1 ~ ~_1_~_.____._ {l{___._ _.1__? _ l~ I 3 f ~ i~ ~ 6. Install Air Conditioning with Non-HCFC Refrigerants 1 { 7. Design and Irrstag Effective Ductwork ^ a histall HVAC lhvt and Ductwork within ConrGtioned Space I 3 ~__ - ^ b. Use Dud Mastlc an Atl Duct Joints and Seams I 1 { } __ ^ ^ ^ a InstaA Dudwodr under Attic Insulation (Boded Duds) d. Pressure Balance the Ductwork tam for Master Bedroom e. Protect Duds during Consbucdar ami Clete All Ducts before Occupancy ___ ~ 1 j~_~ 1 ~ i -- - ~ - ~^_ ~--1-~----) 8. Install High Efficiency HVAC Filter (MERV 6+) 1 ~ i 9. Install Zoned, Hydrodc Radiant Heating wtth Slab Edge Insulation 1 { 1 ~ I ^ ^ ^ 10. Inctali Mechanical Ventilation System a Any While House Ventilator System That Meets ASHRAE 82.2 b. Install ENERGY STAR Bathroom Ean c. AN Betlv'aom Fans Are On T6ner or Humidfstat i i I j~- ~ i _ 2 ~ {_ __ 1 - ~ _~ 1 ~~ { 11. Use lowSone Range Hood Vented to the Outside ~ ~ 1 12 Install Carbon Monoxide Alarm(s) i 1 ! { J 3iU[LDING!1'ER.FORMANCE _ PosslWe Points 0,~ 1, lksign and Build Hlgh Pertonnance Homes (2 points for each 1Y. above T-24, up to 30 pts) 30 I ( Enter the percent above Tdle 24 in fire Ceti at IeR. Any vahre over t5% wrR automaUcaNy earn 30 pants. { I 2 House Oi~tains ENERGY STAR wtth indoor Air Package Certificetfon ! { 5 ~ Z 3. Inspection and Diagnostic Evaluations a Third Party Energy and Green Bul{ding Review of Home Plans _ _ ~ 1 ( 1 __ 1 ~ - -- ------ ^ b. Blower Door Test Perfanned ~ 1 ~ ~ ^ _ __. c. House Passes Combustion Safety Badrdrett Test { 1 K RENEWABLE ENERGY Possible Points . 1. Pre~Plumb for Solar Hot Water Hearing 4 ~ ( { 2. Install Solar Water Heating System I 10 l i 3. Install Wiri Conduit for Future Photovoltaic Installation b Provide 20D ft of South•Fecing Roof ~ 2 i { ^ ^ ^ 4. Instag Photovoltaic (PV) Panels a 1.2 kW System b. 24 kW System G 3.6 kW a more _ ~6 ~-_ I _ _ -~ I 6 ! 1 _-_I _ _ 6 Single-Family GreenPoint Checklist 2006 Edition Page 3 of 4 i~~~~_ 3 ~ i ~ ~ O ` e E ~ ~ ~ U W ¢ ~ }i L:'N7NI3S>~S - Possible Points 1. Provide Permanent Walk-0if Mats and Shoe Stange at Homo Entrances ~ w 1 i ~ 2 Use LowINaVOC Paint ^ a. Low-VOC Int~iw WaIVCeiing Paints (<50 gpl VOCs (Flat) and <150 gpl VOCs (Non-FIB)) _ i' - W~~..+ i__ 1 -_, ~ j ~__ .-~- ^ b. Zero-Vl)C: Interior WaIVCeOing Paints (<5 gpl VOCs (Flat)) ~ 3 i i ~ 3. Use Low VOC, Water-Bed Wood Finishes {<150 gpl VOCs) ! Z f 4. Use Low•VOC Construction Adhesives {f/0 gpl VOCs) for All Adhesives j 2 1 w 5. Use Recycled•Conterrt Paint i r 1 b. Use Environmentally Preferable Matedals far Interior Finish: A) FSC-Certified Wood, B) Reclaimed Lumber, C) Rapidly Renewable D) Recycled•Corderd or E) FmgerJofnted At Least 50% of Each Matedal (1 pt each): D e. Cabinets I 1 I 1 ! ^ b. Intedw TrGn -~ _ __ . _i .. _._.._ 1 ^ d. Doors { __.._ 1 I ^ e. Cauniertops - ~ f 1 ! 7. Reduce Formaldehyde in Irrteriar Finish (Section Ot350) for AL Least 50% of Fach Material Below: ^ a. cabinets _ ( 1 ~ _ f ^ b. Intedar Trim __ ~ ~-_7_. __ Iy _ __j__ ^ o SheMng __ _ - ~ ~1 ~_ _ ^ d SubBoor ~ I 1 8. After Installatlon of Finishes, Test of Indoor Air Shows Formaldehyde Level <27ppb ~ 3 I41 ai7SOORIlYG '_ Possible Points 1. Uss Ernironmentally Preferable Flooring: A) FSC•CeRlfied or Reclaimed Wood, B) Repidty Renewable Flooring Materials, C) Recycled•CordeM Ceramic Tiles, D) Exposed Concrete as Finished Flow or E) Recycled- Conterd Carpet. Note: Fbwing Adhesives Must leave <50 gpl VOCs. ^ a AM'mimum 15% of Floor Area ~ 1 ~ ~ ^ b. Ninimum 309'0 of Fbor Area ____ I~,_~~ 1 _ l_~ ^ a M'inknum 50% of Floor Area . 1 ^ d. Minimum 75% of Floc Area I ± f 2. Thermal Mss Floors: Flow Covering Other than Carpet on 50N. ar More of Concrete Floors ~ 1 ~ t 3. Floodng Meets Section 01350 or CRI Green Label Plus RequiremeMS (50% Minimum) i 2 I ~ N OTHER - Possible Poirits - 1. Mcaporate Green points Checkli§t in Blueprints -Required j ~ Y ~ 2. Develop Homeowner Manual of Green FeatureslBenefits 1 j 1 ~ ~ i 3. Community Design Measures 8 Local PdodUes: Seethe Community Planning 8 Design sedim in Chapter 4 of the New Home GuideNnes for measures. Maximum of 20 points far suggested measures. l.ocel requirements may also be Rsted here. --____-- p Enter description here -- - p Enterdesaiptlon here ___-_. -- ------- _....._ . - - ------....__-.._ p Enter description here - -._.__._.._--__.---- p Enter descriptor here " - - 4. Innovation: Ust innovadve measures that meet the grern btnldhtg objectives of the Guidelines. Enter up to a maximum combined total of 20 pts. See Innovation Chedclfst for suggested measures. p p 0 Inrxwatbn in Community: Enter description here Inravaticn in Energy: Enter description here __ ---------- ..-.-- -.. _ _. _ ... _---__.------- _.__ _ _.. _ ._..__ _ __.._ --.--._. ..-._-w.-_.._____._.--.._.._.-.._._.-._,.._._..____._-_____.__.__._.__--------- -----_ .,.___.__-- -- ----_--- innovation in IAQIHealth: Enter description here p Innovation in Resources: Frter description here - ..~. ~ _Y _._ _ _ p _._ --. Innavatiar rtt Water: Enter description here _____-.._._ Points Achieved from SpeciRc Categories Total Points Achieved Project Has Met All Recommended Minimum 12equirements Single-Family GreenPoint Checklist 2tx16 Edition Page 4 of 4 1 ~e:__t~~ _ o~~ i~ ~~_~e_ ~_ _Gi~_if ~ .~- •_ e- •- Vii' ~i-~ .~.~~s__Gjq `'e'l-. !+ ~ ~ s~ e~ ~.~ p~ D~~~ ~° e ., ` ill ~ 111 `;! 19 ., .., ~;~. gZ ~~ ~~ eI! ~~LIF'p}2~~ ~` f~ a •i e e~i II - PIS ne -CITY 0-~ DUI~LIN ~I o _„~i e~I II - L,AYI'~RS®N'~ GUII~~ TU i-. T~I~ INCL~LTSI~NA~Y Wp .j ~~ ~ ~ IDl'~IN~ ~I~INANCE r; ~. ~~ ~~.EGIJL,ATIQNS :~! ~ e~ ..: ~~ ~~I i,e :~ ~e ~ ~e 'I APPROVED BY DUBLIN CITY COUNCIL `~ lip ON JUNE 1, 2004 :> ejj ~,. R I e ,; ,; Revised in April 2005 ij ,. :~~ @^i ~~ 1 0 ,•i-°e=.e-e°=e_o-=e=-.~oe_e~°i=°e_-.e=.s=s__:.e-e ~.o -~o~ __._ =_e=.e-re ~~~1f r~ ~~~ L~~~~ ~69~ a5~ CITY OF DUBLIN TABLE OF CONTENTS INTRODUCTION 1 1 THE INCLUSIONARY ZONING PROCESS 2 1.1 Determining the Number and Size of Units Required 2 1.2 How to Calculate the Inclusionary Unit Obligation 2 1.3 How to Calculate How Many Units Must Be Constructed and How Many Units Will be Subject to the In-Lieu Fee 3 1.4 How to Calculate the Fee That May Be Paid in-lieu of Unit Construction 3 1.5 How to Calculate How Many Inclusionary Units Must Be Provided at Each of the Three Income Levels 4 1.6 How to Determine the Unit .Sizes and bedroom requirements for Inclusionary Units 5 1.7 How to Determine the Location of Inclusionary Units Within the Development 6 2 AFFORDABLE HOUSING AGREEMENT 2.1 What is an Affordable Housing Agreement 7 7 3 FOR SALE PROJECTS 8 3.1 The Marketing Plan 8 3.2 Applications for Ownership Units 8 3.3 Screening Based on Household Size 10 3.4 Screening Based on Priority Preferences 11 3.5 Buyer Selection Process 13 4 ESTABLISHING SALES PRICE AND LOAN REQUIREMENTS FOR OWNERSHIP UNITS 13 4.1 Sales Price of Affordable Units 13 i l ~o~ a~ 4.2 Acceptable Home Loan Products for Inclusionary Zoning Units 16 4.3 Closing of Sale and Escrow 16 5 RENTAL PROJECTS 17 5.1 Preparation and Approval of Management Plan 17 5.2 Establishing Unit Rents for Inclusionary Units 17 5.3 Screening Based on Household Size 17 5.4 Screening Based on Priority Preferences 18 5.5 Occupant Selection for Rental Developments 20 5.6 Calculating Affordable Rents 21 5.7 Monitoring Rents 22 ii i~-~a~ LIST OF EXHIBITS Exhibit 1 Resale Restriction Agreement and Option to Purchase Exhibit 2 Sample Inclusionary Unit Application packet Exhibit 3 Sample Application to Purchase Inclusionary Unit Exhibit 4 Selection Preference Verification Letter Exhibit 5 Excel Spreadsheet to Calculate Ownership Sale Prices Exhibit 6 State of California Housing and Community Development Department Income for Guidelines (Example 2004) Exhibit 7 Current Alameda County Housing Authority Utility Allowance Sheet Exhibit 8 Below Market Rate Unit Monitoring Sheet iii ~ ~a ~~~~ LAYPERSON'S GUIDE TO THE INCLUSIONARY ZONING ORDINANCE REGULATIONS (Provision of For-Sale and Rental Inclusionary Units (below market rate units) Introduction. This document is the Layperson's Guide to the City's Inclusionary Zoning Ordinance Regulations ("the Regulations', which are set forth in the City's Municipal Code at Chapter 8.68. The City Council's purpose in adopting these Regulations is to increase the diversity of housing prices/rents in the community and ensure that the range of prices/rents continue over time. The purpose of this Guide is to assist the layperson in interpreting these Regulations early in the development process so that development projects are sensitively designed from the beginning. Development projects of 20 residential units or more must comply with the Regulations. In general, the Regulations require that 12.5% of the units constructed in a project be restricted in occupancy and in sale price or rent charged. Such restricted units are refenred to as Inclusionary Units or Below-Market-Rate (BMR) units. (Section 8.68.030.A) Of these units, 50% must be affordable to moderate-income households, 20% to low- income households and 30% to very low-income households. (Section 8.68.030.B) Moderate-income households, low-income households, and very low-income households are defined as households that have an income level, respectively, of 120% to 80%, 80% to 50%, and less than 50% of the median income for the County of Alameda adjusted for household size. (Section 8.68.030.D.) The State of California Housing Community Development Department (HCD) annually publishes income. limits for each County. The City uses the HCD income limits for Alameda County, which are available on the HCD website (www.hcd.ca.gov), for setting income limits for the Inclusionary Zoning . Regulations (Section 8.68.030.D). While the Regulations require that 12.5% of the units in the project be Inclusionary Units, they permit the developer to meet 40% of this obligation by paying a fee in-lieu of construction. Thus, there is a "must-build" requirement of 7.5% of the units in the _ project, and the obligation with respect to the remaining 5% may be satisfied by the payment of a fee in-lieu of construction. Inclusionary Units must remain affordable for a period of 55 years, through affordability restrictions recorded against the property. In addition, the Inclusionary Zoning Regulations require that Inclusionary Units: • Be constructed concurrently with the market-rate units in the project • Have a similar range of bedrooms to the market-rate units in the project • Not be distinguished by design or materials from the market-rate units in the project Apri129, 2005 1 173 • Be reasonably dispersed throughout the project. The Regulations also contain. other means of complying with the obligations it imposes. Those alternatives are set forth in Section 8.68.040 of the Dublin Municipal Code. 1 THE INCLUSIONARY ZONING PROCESS 1.1 Determining the Number and Size of Units Required Prior to submitting a preapplication to the City for projects that include residential units of 20 or more, the developer should begin thinking about how the Inclusionary Units will be built into the design of the project. Housing Staff is available to discuss options for meeting the Inclusionary Requirements with the developer as part of the initial project review. For example, if a Developer intends to build only the minimum number of Inclusionary Units that the Regulations require it to build, Housing Staff can preliminarily indicate for the developer's planning purposes the number of Inclusionary Units the developer is required to build, the income levels and sizes of the required Inclusionary Units, and the amount of the in-lieu fee under the then-current fee schedule. After a project application is submitted to the Community Development Department for review, a Planning Review Committee Meeting is generally held. In this meeting City Staff and interested agencies involved in the development process review the project and give preliminary comments to the developer. Prior to or following the Project Review Committee (PRC) meeting, Housing Staff will send a letter to the developer indicating the Inclusionary Zoning Obligations of the project as preliminarily proposed. A copy of this letter will be directed to the City Planner responsible for the project as well. The purpose of this letter is to provide the developer information on inclusionary obligations as early as possible in the development process. The City recognizes that the project is likely to evolve over time and that the project will likely change prior to obtaining City entitlements. However, this information is provided early in the process as a service to the developer for their planning purposes. The actual Inclusionary Zoning Obligations will be formalized in an Affordable Housing Agreement (AHA) between the City and the Developer, prior to recordation of a final map for the development. 1.2 How. to Calculate the Inclusionary Unit Obligation The Regulations state that 12.5% of the total number of units within an applicable development project be Inclusionary Units (Section 8.68.030.A.). In making this calculation, any decimal fraction less than or equal to 0.50 is disregarded, and a decimal fraction greater than 0.50 is construed as a unit. Two examples of how the Inclusionary Unit Obligation for a particular development are shown in Figure 1. Apri129, 2005 2 FIGURE 1 Example 1: The developer proposes a 224-unit subdivision. 12.5% percent of 224 is 28. The Inclusionary Obligation is therefore 28 units. Example 2: The developer proposes a 316-unit subdivision. 12.5% percent of 316 is 39.5. Rounding the decimal fraction down, the Inclusionary Obligation is therefore 39 units. 1.3 How to Calculate How Many Units Must Be Constructed and How Many Units Will be Subiect to the In-Lieu Fee The Regulations permit the developer to pay a fee in-lieu of constructing up to 40% of the Inclusionary Unit Obligation. When the calculation of the fee results is a decimal fraction, the rounding rules contained in Section 8.68.030A are used. Using the same examples from Figure 1, Figure 2 illustrates the calculation of the number of Inclusionary Units that will be subject to the fee. FIGURE 2 Example 1: The developer proposes a 224-unit subdivision, for which the Inclusionary Obligation is 28 units. 40% of 28 units =11.2 units. Disregazding the fraction, the developer may pay fees in-lieu of construction on the remaining 11 units, and the developer's "must-build" obligation would be 17 units. 11 + 17 = 28 units. Example 2: The developer proposes a 316-unit subdivision, for which the Inclusionary Obligation is 39 units. 40% of 39 units = 15.6 units. This number is rounded up to 16 and in-lieu fees may be paid for this amount, instead of providing units. The "must-build" obligation would be 23 units. 16 + 23 = 39 units. 1.4 How to Calculate the Fee That Mav Be Paid in-lieu of Unit Construction The amount of the in-lieu fee is set by resolution of the .City Council. Resolution No. 56- 02 establishes that the in-lieu fee per unit is adjusted annually on July 1 to reflect the greater of the percentage change either in a) the Bay Area Urban Consumer Price Index (CPI) as of March of each year, orb) the United States Department of Housing and Urban Development (HUD) Fair Market Rent limits for the Oakland Primary Metropolitan Statistical Area (PMSA) that aze in effect at the time. The fee as of July 1, 2004 is $82,466 per Inclusionary Unit. April 29, 2005 i~~asp THE ENTTKE IN-LIEU FEE AMOUNT FOR TFIE PROJECT IS DUE AND PAYABLE AT ISSUANCE OF FIRST BUILDING PERMIT IN THE PROJECT. Using the examples from Figures 1 and 2, Figure 3 illustrates how to calculate the amount of the in-lieu fee. FIGURE 3 Example 1: The developer proposes a 224unit subdivision. Fees may be paid in lieu of construction on 11 units. 11 X $79,754 = $877,294, which is the amount of the in-lieu fee for the project. This entire amount would be due prior to issuance of first building permit. Example 2: The developer proposes a 316-unit subdivision. Fees may be paid in lieu of construction on 16 units. 16 X $79,754 = $1,276,064,. which is the amount of the in-lieu fee for the project. This, entire amount would be due prior to issuance of first building permit. 1.5 How to Calculate How Many Inclusionary Units Must Be Provided at Each of the Three Income Levels The Regulations (Section 8.68.030.B) state that the Inclusionary Units included. in each development project shall be allocated to households in the following manner. Very low-income households 30% Low-income households 20% Moderate-income households 50%' 100% Once again, when the result of the allocation calculations includes a decimal fraction, the rounding rules contained in Section 8.68.030.A are used. The Regulations indicate that, where the allocation results in fewer units than would otherwise be required; one additional unit should be allocated to the lowest income level with the decimal fraction closest to 0.50. (Section 8.68.030.B) Figure 4 illustrates how to calculate the number of units that must be provided at each income level and how the rounding requirement is implemented. April 29, 2005 4 i ~~~~~ FIGURE 4 The project includes 200 units. The Inclusionary Unit obligation is, therefore, 25 units. The developer chooses to pay the in-lieu fee for 40% of the units, which equals 10 units. The developer's must-build requirement (7.5%) is, therefore, 15 units. 50% of those 15 units would need to be restricted for moderate-income households, 50% of 15 = 7.5 20% of those 15 units would need to be restricted for low-income households, 20% of 15 = 3 30% of those 15 units would need to be restricted for very low-income households, 30% of 15 = 4.5 7.5+3+4.5=15 Since two of these numbers are fractions at exactly .5, the City of Dublin would require that the unit be provided in the lower income category. In this example the income- unit mix would be: • 7moderate-income units • 31ow-income units • 5 very low-income units 1.6 How to Determine the Unit Sizes and bedroom requirements for Inclusionarv Units The Regulations require that the same proportion of bedrooms be reflected in the Inclusionary units as are in the market rate units.'Once again, the rounding conventions in Section 8.68.030.A are used, if the allocations result in decimal fractions. Figure 5 illustrates how to determine the number of Inclusionary Units that must be provided at each unit size. Apri129, 2005 5 --~7 ~ a ~ FIGURE 5 To determine bedroom requirement: The developer proposes a 200-unit condominium project and is paying in-lieu fees for 40%. The must build obligation is 15 units. The project includes: • 50 one-bedroom units (25 % of total) • 100 two-bedroom units (50% of total) • 50 three-bedroom units (25% of total) Therefore: • 25% of the Inclusionary Units are to be one-bedrooms • 50% of the Inclusionary Units are to be two-bedrooms • 25% of the Inclusionary Units are to be three-bedrooms To determine bedroom requirement per income category: If 5 of the units are very low-income, using the percentages above the requirement for bedrooms are: • 25% of 5 = 1.25 one-bedroom units • 50% of 5 = 2.5 two-bedroom units • `25% of 5 = 1.25 three-bedroom units Therefore, the development would be required to provide: • lone-bedroom unit • 3 two bedroom units • 1 three bedroom unit The same calculation is performed to determine the bedroom sizes of the low- income and moderate-income units. 1.7 Iiow to Determine the Location of Inclusionarv Units Within the Development Section 8.68.030.E states that "All affordable units shall be reasonably dispersed throughout the project." The purpose of this provision is to avoid concentration of the Inclusionary Units in a particular location within a development, effectively segregating them from the rest of the development project. There are many ways in which to implement this requirement and consultation with Community Development Department Staff is recommended prior to developing the final site plan. Ultimately, the Planning Commission or City Council will make a determination based on Staff recommendation if this requirement has been met. Apri129, 2005 6 I ~~ ~ as~o 2 AFFORDABLE .HOUSING AGREEMENT The execution of an Affordable Housing Agreement ("Agreement") is required under Section 8.68.50 of the Dublin Municipal Code. This requirement is generally repeated in the Conditions of Approval for the Site Development Review or Tentative Map for the development project for the developer's convenience. 2.1 What is an Affordable Housing Agreement This agreement contains the legal requirements of the residential project for compliance with the Inclusionary Zoning Ordinance regulations. This Agreement runs with the land and survives transfer or sale of the land to another developer. The Agreement is for a period of 55 years. If a project is not built and new entitlements are sought for a property, a new Affordable Housing Agreement would be required, which would replace the existing Agreement. Among other things, the Agreement must contain the following items: 1. A description of how the developer will comply with its Inclusionary Obligation (whether through unit construction and/or partial payment); 2. An indication of whether the Inclusionary Units will be for-sale or rental units; 3. A requirement that the developer construct the number of Inclusionary Units required to be constructed in each income category; 4. A requirement that the developer construct Inclusionary Units at particular unit sizes (i.e., number of bedrooms) in each income category; 5. Depending on the nature of the development, requirements regarding the timing of construction of the units to ensure that the units are constructed concurrently with the development of the project as a whole; 6. If the development proposes for-sale units, a requirement that the developer prepare and obtain City approval of a Marketing Plan, prior to issuance of any building permits in the project, indicating efforts to be made by the developer to sell or rent the Inclusionary Units. This requirement is discussed in additional detail in Section 2.2 below; 7. If the development proposes for-sale units, it is required that the developer ensure that the purchaser of an Inclusionary Unit execute a resale agreement. A copy of the form resale agreement is attached as Exhibit No. l; and 8. If the development proposes rental units, the owner shall provide a Management Plan and prepare the Annual Report required by Section 8.68.OSOB. The Management Plan documents how the management firm markets the Inclusionary Units, how the firm maintains a waiting list for the Inclusionary units, how the management firm verifies the household income of applicants for the Inclusionary . Units, both initially and annually, provides information on the units to be made available for the City of Dublin to use on the City website, provides a contact telephone number and also identifies those responsible for contact and communication with the City of Dublin. Upon approval of the City Staff, the April 29, 2005 1~9 ~ aS~ Management Plan may be produced and submitted after the Affordable Housing Agreement is executed, but prior to the issuance of building permits. 3 FOR SALE PROJECTS After the Affordable Housing Agreement is executed, and prior to the sale of any affordable units in the project there is a process that must be followed that includes preparation of a Marketing Plan, screening, ranking, qualifying and providing documentation to Housing Staff for final verification of eligibility for an Inclusionary Unit. 3.1 The Marketing Plan Prior to the issuance of building permits for any for-sale Inclusionary Units, the developer shall submit a Marketing Plan for the City's approval. The Marketing Plan must contain the following: A one-page narrative summary suitable for advertising the availability of the Inclusionary Uriits on the City web page and other locations, including a telephone number for interested applicants to call for additional information; 2. An explanation of the application process to be used. The Regulations require that applicants be ranked based on preferences set forth in the ordinance (Section 8.68.OSO.D); The developer must indicate the process by which it intends to accept applications and rank applicant households. In order to establish an eligibility list, it will be necessary that application deadlines be established for each phase of a development that includes Inclusionary Units; 4. Timelines for buyer selection. If the development is a phased project, information must be provided on the number of phases and the timelines for those phases; and 5. A requirement that the developer's sales staff meet with the City's Housing Staff to receive training on the sale selection process and application. (See Exhibit No. 2) 3.2 Applications for Ownership Units- Each applicant shall be required to complete an application. Exhibit No 3 is a sample application for the purchase of an Inclusionary Unit. An applicant receives: • Explanation of the process used in occupant selection; • Eligibility requirements for interested buyers; April 29, 2005 ~~~a~ • The income levels for the various units; • The City preferences in occupant selection as established in the Regulations (Section 8.68.OSO.D); • Any floor plans for the offered units; • The City's "Application for Inclusionary Unit"; and • The Disclosure Statement from the Resale Agreement. It is important that the developer's sales staff be able to understand the application process. Pursuant to the Marketing Plan, the Housing Staff will have provided the developer's sales staff with training so that they understand and can explain the application process. The developer's sales staff should be able to explain the resale restrictions that are contained in the Resale Agreement that each buyer would need to execute. The developer may rank applicants based on the criteria that are set forth in their Marketing Plan. For example, the developer might only accept those applicants that are mortgage pre-qualified by a lender or other methods. Once the applicants are ranked, the developer must use this list and offer the units to the highest ranked household as long as these households are able to verify that they are in the correct income category and are able to obtain a loan for the unit. (Acceptable Home Loan Products are discussed in Section 4.2). The sale prices of the units will vary depe dine on the income o each prospective household offered a unit. Figure 6 illustrates how the selection process works. (See following page) Apri129, 2005 9 1~-~a5~ FIGURE 6 Step 1. A developer decides to accept Inclusionary Unit applications for a particular period of time and advertises, as set forth in the Marketing Plan. Step 2. The developer makes application packets available to all who request them. The developer will also provide application packets to the City for distribution at City Hall and the Library. Step 3. The applicant response period ends. The developer will sort and establish a List of all qualified applicants within one month following closing of applicant list. This initial screening will qualify applicants based on low, very low or moderate income as the case may be for the particular unit) and whether the household is the appropriate size for the particular unit. If the developer has established in the Marketing Plan that they will accept only mortgage pre-qualified applicants, this will be reflected in the list as well. Step 4. All qualified applicants within each income category will be ranked by the preference categories in the Regulations. Those applicants with the highest number of points are at the top of the list and others follow in descending order based on the number of points given. Step S. Units are offered to applicants beginning at the top of the list. The developer may not pass over an applicant higher on a list in favor of another because of a higher income. Applicants are to be taken in the order ranked. The developer may only exclude ranked applicants because the applicants were not successful in obtaining financing or were not able to demonstrate their qualifying household income. Step 6. If the applicant accepts the unit, the applicant's file, ready to enter into escrow, is delivered to the City of Dublin Housing Staff for review and confirmation. Step 7. Applicant's files are returned to developer and escrow may begin for each qualified applicant for the unit. 3.3 Screening Based on -Household Size For both rental and for-sale units, household size for each Inclusionary Unit may not exceed two people for each bedroom and may not be less than one person per bedroom, unless otherwise prohibited by special financing sources such as the California Multifamily Housing Program. Selection of applicants will be limited to those households that match the number of bedrooms. in the units being constructed for sale. The following household sizes for various units sizes are used: Apri129, 2005 10 One-bedroom units 1-2 people households Two-bedroom units 2-4 people households Three-bedroom units 3-6 people households Four-bedroom units 4-8 people households 3.4 Screening Based on Priority Preferences After being screened for initial eligibility based on household income and household size, applicant households shall be ranked and sorted based on the number of points the applicant receives under the priorities set forth in the Regulations at Section 8.68.OSO.D. If priority categories are checked on the application form, the developer will be required to request verification of that claimed preference from the applicant and the form letter requesting verification attached as Exhibit No 4 may be used for this purpose. This verification may be requested at the initial application or at a later date, after the developer has performed a preliminary review of all applicants. The point system set out in the Regulations (see Table 1) provides preferences to those persons who live in Dublin, work in Dublin, are public-service employees in Dublin, are seniors, are permanently disabled, are an immediate family member of a Dublin resident, and/or are being required to relocate from current Dublin residence due to demolition of dwelling or conversion of dwelling from rental to for-sale (lpoint, one per household). The Regulations provide that even if two persons in the household may be eligible to receive priority points, the points are only awarded for one person. For example, if a husband and wife are both employed in Dublin, the couple receives only 3 points for being employed in Dublin. Similarly, if two seniors make up a household, they would be entitled to only 1 point. Table 1: The Priority Point System Priority Points Employed in Dublin 3 points Public service employee in Dublin I additional point Resides in Dublin 3 points Seniors (62 and over) 1 point Permanently disabled l point Have an immediate family who is a Dublin resident 1 point & has continuously lived in Dublin the past year Must move because housing is to be demolished or 1 point converted to condo Definitions of the various priority categories are set forth in the Regulations, Section 8.68.OSO.D as follows: • To qualify as employed in Dublin the person shall have been employed within the City of Dublin for at least six months. • To qualify as a public service employee the person shall be employed by a public agency. • To qualify as a Dublin resident, the person shall have been a resident of the City of Dublin for at least aone-year period prior to the eligibility determination. Apri129, 2005 11 (~3 ~ ago • To qualify as a relocated Dublin resident, the person shall have been relocated from the current Dublin residence due to demolition of dwelling or conversion of dwelling from rental to for-sale unit. Where definitions are not explicitly stated in the Regulations, the City has developed defmitions: A senior is defined as a person 62 years or older for the purpose of qualifying for preference points. To qualify for the permanently disabled point, the person must be able to provide written verification from a physician or show receipt of SSI. Immediate family is defined as a mother, father, brother, sister, child, grandparent or grandchild. Figure 7 demonstrates how the preference points are calculated. FIGURE 7 Example 1: An applicant for an Inclusionary Unit both lives in Dublin (for at least one year) and works in Dublin (for at least 6 months). This individual will receive the following points: Lives in Dublin 3 points Works in Dublin 3~o'mts Total number of points 6 points Example 2: An applicant for an Inclusionary Unit works in Dublin and is a schoolteacher. This individual will receive the following points: Works in Dublin 3 points Public Service Employee 1 point Total number of points 4 points Example 3: An applicant for an Inclusionary Unit is a senior citizen (62 years old) and lives in the City of Dublin (for at least one year). This individual will receive the following points: Senior citizen 1 point Lives in Dublin 3 points Total number of points 4 points Apri129, 2005 12 tau Faso 3.5 Buyer Selection Process The developer locates and finally selects purchasers pursuant to the Inclusionary Zoning Regulations. The restricted units are to be made available to very low, low, and moderate income households. The developer must verify that the prospective occupants' income is/are appropriate for those categories. This verification must consist of evidence based on some third party source such as income tax returns or W-2 statements. Proof that the developer has requested and obtained this verification from prospective occupants will be requested by the City Housing Staff prior to final approval of occupancy in any Inclusionary unit. The selection process requires the developer to use the following process: • Collect applications for a given time period. An initial qualification is made based on household size (See Section 3.1) and household income (see Section 4.1). Sort and rank the applications based on the Inclusionary Zoning Regulations' preferences for occupant selection. Complete the ranking process and produce a list with those applicants with the most City of Dublin preference points at the top followed by all other applicants in descending order based on number of points received. If more than one applicant receives the same number of City.preference points or if some applicants receive no points, the. developer shall use other objective criteria in occupant selection. The criteria that the developer proposes to use shall be submitted to City Staff ahead of time in the Marketing Plan. For example, the developer may date stamp all applicant applications and, in the case of a tie, will offer the unit to that applicant that applied first, or the developer may choose to hold a lottery to break ties. • The ranked list must be completed within 30 days of the application deadline. • Offer the units to applicants based on the list established above, offering first to those applicants with the most points, then in descending order. • Provide application with income verification, executed Resale Agreement and final sale price offered as well as loan product to be used to City for final determination of eligibility. If all needed documents are included, the City will return to developer or agent within a week if possible. 4 ESTABLISHING SALES PRICE AND LOAN REQUIREMENTS FOR OWNERSHIP UNITS 4.1 Sales Price of Affordable Units The Inclusionary Ordinance (Section 8.68.020A.2) states that the price at which the Inclusionary Units are to be offered is the price that would allow an applicant in the Apri129, 2005 13 i~s~ ~~ pertinent category to pay no more than 35% of their income toward housing expenses. This requires that each and every qualified buyer pay no more than 35% of his or her individual household income toward housing expenses. The only exception is very-low income applicants. Units for very-low income applicants will be priced using the maximum in the low income level adjusted for household size as total housing expenditures. As described below, a number of assumptions are used to calculate the maximum sale price for inclusionary units. An individual homebuyer's actual expenses may differ from the assumptions. For example, the actual interest rate may be lower if the homebuyer obtains a variable interest rate mortgage. In addition, the actual downpayment may be more or less than the assumed 5%, and the mortgage term maybe less than 30 years. The assumptions are used for the purpose of establishing a standardized method of an-iving at a sales price, and are not intended to limit the choices that a buyer may utilize or to limit the mortgage products or downpayments that a developer may accept.. Following lending industry standards, housing expenses consist of "PITT," or principal, interest, taxes and insurance. The City of Dublin also includes Homeowner Association dues as a housing expense. The maximum sale price is the price that will allow the homebuyer to purchase an inclusionary unit by paying no more than 35% of their household income for PITT and Homeowners Association dues, based upon the following assumptions. The only exception is very-low income applicants. Units for very-low income applicants will be priced using the maximum in the low income level adjusted for household size as total housing expenditures. • Downpayrnent (For the purpose of calculating the sale price of a home or condominium, it is assumed that the prospective buyer will make a 5% downpayment. The developer may accept alternate amounts for actual downpayments.) • Interest (Based on the weekly 30-year fixed rate published by the Federal Home Loan Mortgage Corporation, (703) 903-2446. The actual interest rate may vary.) • Mortgage Term (A 30-year term is assumed. The actual term may differ.) • Taxes (Calculated using 1.25% of the estimated sale price of the unit.) • Insurance (Includes Private Mortgage Insurance (PMI), if any, and homeowners hazazd insurance. PMI -For the purposes of calculating sale price, PMI may be calculated at 2% of the estimated loan, or the amount actually required by a given loan product being offered. o Homeowner's Insurance -The cost of homeowner's insurance may be calculated based on information researched by each developer, as to what an Apri129, 2005 14 ~~~° ~" ~ actual policy may cost a new homeowner. (If the homeowner insurance is covered by a homeowner association structure, homeowners insurance need not be included, but it must be documented that the HOA will provide adequate insurance.) Homeowners' association dues, if any. The City has an Excel spreadsheet, available for public use, which can assist in the calculation of the final sales price, based on the listed criteria and housing expenses (Exhibit No 5). Each Inclusionary Unit may sell at a different sale price, depending on the household income of the selected household. Figure 8 shows how the sales price is calculated (see following page). FIGURE 8 This. example is of afour-person household qualifying to purchase atwo-bedroom unit. This household's gross income is $89,000. The maximum income for afour-person $98,650 moderate income household (using State HCD 2004 income limits) Household's annual income (hypothetical) $89,000 Monthly income available for housing $2,595.83 expenses: (35% of $89,000 = $31,150; $31,150 divided by 12 = $2,595.83) Developer wishes to sell home at: $300,000 Down Payment (for calculation of sales price 15 000 only - 5%) Mortgage Required $ 285,000 Calculation: Monthly mortgage payment (based on $1,708.72 $285,000, 30-year fixed at 6% interest) Other Monthly Housing Expenses: • Private Mortgage Insurance $ 191.43 • Property Tax (1:25% of sales price) $ 312.50 • Homeowners Insurance (based on $ 166.67 demonstrated mazket rates) • Homeowners Association Dues 2$ 00.00 Total monthly expenses: $2,589.75 $2,589.75 is less than the buyer's monthly income available for housing expenses of $2,595.83, therefore, the sales price is in accordance with the Inclusionarv Zonine Ordinance reouirements Apri129, 2005 15 ~~~~ ~~ 4.2 Acceutable Home Loan Products for Inclusionary Zonine Units The City reserves the right to reject certain mortgage products because of the stronger likelihood that some products could result in loss of the Inclusionary Unit due to a foreclosure. The following is anon-exclusive list of the loan products that are acceptable to the City. The list is not intended to be exhaustive and other loan products may be evaluated upon request. 1. 97-100% Loan to Value Loans 2. 90-97% Loan to Value Loans 3. Up to 95% Loan to Value Loans 4. Adjustable Rate Mortgages • Two-Step Mortgage (adjusts only once -depends on rate adjustment) • Six Month ARM (Depending on initial interest rate, adjustment caps and lifetime caps) • One Year ARM (Depending on initial interest rate, adjustment caps and lifetime caps) • Fixed-Period Adjustment Rate Mortgages (Depending on adjustment rates, caps and lifetime caps). In evaluating ARMS the City will consider the effect of the mortgage provisions on the ability of the buyer to make payments • Pledged-Assets Mortgages • Virtually all Ca1HFA products available to First Time Homebuyers in California 4.3 Closing of Sale and Escrow Once the Inclusionary Unit buyer has been selected and price calculated, the necessary documents must be completed and buyer fully qualified for the mortgage. When the buyer is fully qualified and ready to enter into an agreement to purchase, the qualifying packet is sent to the City of Dublin Housing Staff for review. The documents necessary for Housing Staffreview are the following: 1. Completed and Signed Application for Inclusionary Unit; 2. Completed and signed loan application; 3. Completed Truth in Lending Statement; 4. Complete Income Verification information on household; 5. Complete information on unit offered to prospective buyer, including unit size, number of bedrooms and additional amenities; 6. Completed, executed, and notarized City of Dublin Resale Restriction Agreement and Option to Purchase; and 7. If claiming an Inclusionary Preference, verification of that preference (covered in Section 3.0). Apri129, 2005 16 ~~~ ~n ~ ~ City Staff will review the packet for completeness and compliance with the Inclusionary Zoning Ordinance. The Annlicafion for Inclusionar~Unit will be removed from the packet and retained as part of City records. A copy of the income verification for the household will be made and retained by the City as proof of the buyer's qualification to purchase the Inclusionary Unit. The original signed Resale Agreement will also be retained by the City and a copy returned to the lender. If the City receives a completed packet, the review will be completed and file returned to developer within one week of the submittal if possible. The Resale Agreement along with a Request for Notice of Default will be recorded on closing of each sale. IF THE PACKET IS INCOMPLETE, THE SALE CANNOT PROCEED UNTII. ALL NEEDED DOCUMENTS ARE PROVIDED. The documents will be returned to the lender, with a copy of the City's Escrow Instructions for the recording of the Resale Agreement.. City Staff will contact the lender to establish whom the escrow and/or title firm is that will be in charge of closing the sale. City Staff will send the original Resale Agreement to that firm with the Escrow Instructions for recordation on closing of the sale. 5 RENTAL PROJECTS After the Affordable Housing Agreement is executed, and prior to the rental of any units in the project there is a process that must be followed that includes preparation of a Management Plan, screening, ranking and qualifying of eligible tenants. 5.1 Preparation and Annroval of Management Plan The Management Plan will outline for the City how the management entity plans to recruit and maintain occupancy of the Inclusionary Units. The document will also provide a brief history of the management entity and previous experience as well as list other rental complexes that are under their management. 5.2 Establishing Unit Rents for Inclusionary Units The Inclusionary Ordinance (8.68.020A.1) states that rents for Inclusionary Units may not exceed 30% of the maximum income level for very low, low and moderate income. The City of Dublin uses the State of California Housing and Community Development Income Guidelines by County. The Income Guidelines for 2005 are attached as Exhibit No 6. 5.3 Screenine Based on Household Size For both rental and for-sale units, household size for each Inclusionary Unit may not exceed two people for each bedroom and may not be less than one person per bedroom, April'29, 2005 17 l~ ~a unless otherwise prohibited by special financing sources such as the California Multifamily Housing Program. Selection of applicants will be limited to those households that match the number of bedrooms in the units being constructed for sale. The following units household sizes for various units sizes are used: One-bedroom units 1-2 people households Two-bedroom units 2-4 people households Three-bedroom units 3-6 people households Four-bedroom units 4-8 people households 5.4 Screening Based on Priority Preferences After being screened for initial eligibility based on household income and household size, applicant households shall be ranked and sorted based on the number of points the applicant receives under the priorities set forth in the Regulations at Section 8.b8.O50D. If priority categories are checked on the application form, the developer will be required to request verification of that claimed preference from the applicant and the form letter requesting verification attached as Exhibit No. 4 may be used for this purpose. This verification may be requested at the initial application or at a later date, after the developer has performed a preliminary review of all applicants. The point system set out in the Regulations (see Table 1) provides preferences to those that live.in Dublin, that work in Dublin, that are public-service employees in Dublin, that are seniors, and that are permanently disabled. The Regulations provide that even if two persons in the household may be eligible to receive priority points, the points are only awarded for one person. For example, if a husband and wife are both employed in Dublin, the couple receives only 3 points for being employed in Dublin. Similarly, if two seniors make up a household, they would be entitled to only 1 point. Table 2: The Priority Poiat System Priority Points Employed in Dublin 3 points Public service employee in Dublin I additional point Resides in Dublin 3 points Seniors (62 and over) 1 point Permanently disabled 1 point Have an immediate family who is a Dublin 1 point resident and has continuously lived in Dublin the past year Must move because housing is to be demolished or 1 point converted to condo Definitions of the various priority categories are set forth in the Regulations, Section 8.68.OSO.D. • To qualify as employed in Dublin the person shall have been employed within the City of Dublin for at least six months. • To qualify as a public service employee the person shall be employed by a public agency. Apri129, 2005 18 I~ ~ ° a ~-~ • • To qualify as a Dublin resident, the person shall have been a resident of the City of Dublin for at least aone-year period prior to the eligibility determination. • To qualify as a relocated Dublin resident, the person shall have been relocated from the current Dublin residence due to demolition of dwelling or conversion of dwelling from rental to for-sale unit. Where definitions are not explicitly stated in the Regulations, the City has developed definitions: A senior is defined as a person 62 years or older for the purpose of qualifying for preference points. To qualify for the permanently disabled point, the person must be able to provide written verification from a physician or show receipt of SSI. Immediate family is defined as a mother, father, brother, sister, grandparent or grandchild. Figure 9 demonstrates how the preference points are calculated. FIGURE 9 Example 1: An applicant for an Inclusionary Unit lives in Dublin (for at least one year) and works in Dublin (for at least 6 months). This individual will receive the following points: Lives in Dublin 3 points Works in Dublin 3 points Total number of points 6 points Example 2: An applicant for an Inclusionary Unit works in Dublin and is a schoolteacher. This individual will receive the following points: Works in Dublin 3 points Public Service Employee 1 voint Total number of points 4 points Example 3: An applicant for an Inclusionary Unit is a senior citizen (62 years old) and lives in the City of Dublin (for at least one year). This individual will receive the following points: Senior citizen 1 point Lives in Dublin 3_ points Total number of points 4 points Apri129, 2005 19 ~~~~ a~ 5.5 Occuuant Selection for Rental Developments In rental developments, the management firm (which could be the owner or builder) is the entity that will be responsible for occupant selection and documentation. The Management Plan for the development will outline how tenants will be selected and prioritized to comply with the Regulations' preferences. Each applicant shall complete the Application for Inclusionary Unit and return it to the management company. Exhibit No 3 is a copy of the Application for Inclusionarv Unit. The management company's leasing staff should be trained to understand and explain the Affordable Housing Application and process to applicants. To lease the Inclusionary Units the developer/management company will need to do the following: • Collect applications for a given time period. An initial qualification is made based on household size (See Section 5.3) and household income (see State of California, Housing and Community Development Department website, www.hcd.ca.aov); Sort and rank the applications based on the Inclusionary Zoning Regulations' preferences for occupant selection. Complete the ranking process and produce a list with those applicants with the most City of Dublin preference points at the top followed by all other applicants in descending order based on number of points received. If more than one applicant receives the same number of City preference points or if some applicants receive no points the developer shall use other objective criteria in occupant selection. The criteria that the developer will use in the event of a tie shall be submitted to City Staff ahead of time in the Management Plan. For example, the developer may date stamp all applicant applications and, in the event of a tie, will offer the unit to that applicant that applied first, or the developer may choose to hold a lottery to break ties. -The ranked list must be completed within 30 days of the application deadline; • Offer the units to applicants based on the list established above, offering first to those applicants with the most points, then in descending order; and Maintain application with income verification for City to review at onsite monitoring. If a project is financed through a program that has stricter occupant selection or occupant documentation requirements than the City, the City may elect to defer to those requirements and not require additional documentation. The City will require tenant income verification and restriction of the units for 55 years for the three income categories; however; the management firm may send to the City copies of the documentation that is required and produced for other monitoring agencies. Apri129, 2005 20 5.6 Calculatin¢ Affordable Rents Affordable rents are calculated by multiplying the annual household income of the income-qualifying household by 0.30, then dividing by 12. The result is the maximum monthly rent for the Inclusionary Unit if the tenant pays no utilities. The Inclusionary Zoning Ordinance Regulations state that maximum rents cannot exceed 30% of household income for the maximum income in a given category. Following rental programs such as HUD's Section 8 or the Tax Credit Allocation Committee rental tables, reduction in rental amounts are taken if tenants are required to pay utilities. If tenants pay for utilities, the maximum rent must be reduced to account for the cost of utilities (a utility allowance). Utilities include gas, electric, water, and trash disposal. If tenants are required to provide their own stove, refrigerator, or washer and dryer, those expenses are considered utilities, and the maximum rent is further reduced. If the tenant is responsible for any of the above, an allowance reduces the rent by the amounts listed in Exhibit No. 7*. Figure 10 illustrates the calculation of maximum rent. FIGURE 10 Example 1: A developer provides 2 bedroom rental units for moderate-income households. The developer establishes a tenant eligibility list and for moderate-income the first household on the list for atwo-bedroom unit is a family of four with an annual income of $91,900. Thirty percent of $91,900 is $27,570, and 1/12 of $27,570 is $2297.50. This would be the maximum monthly rent. The maximum rent could be charged to this household if the household were not responsible for any utilities. Example 2: Following on Example 1, the maximum rent for the moderate-income unit for a household of four was $2297.50, but this development requires tenants to pay electric, gas , and water and water heating (gas) bills. The heating and cooking are both gas. The management pays for trash, provides the refrigerator and the stove. Using the current Utility Allowance in Exhibit 7, the following amounts are to be deducted from the maximum monthly rent. $2,297.50 gas heating (2 bdrm) $ 12.00 gas cooking " $ 2.00 gas water heating " " $ 10.00 water $ 14.00 $2,259.50 The rent that ma be char a to this household could not exceed $2,259.50 monthl . The Utility Allowances are established by the Housing Authority of Alameda County and revised periodically. The.most current Utility allowances for Alameda County may be accessed at the following web site: http//www.haca.net., then click on statistics. Apri129, 2005 21 ~~~~ ~ ~~ 5.7 Monitoring Rents The Inclusionary Ordinance (Section 8.68.OSO.B) states that the management entity for the development will provide the City of Dublin an Annual Report (Exhibit No 8). The annual report will include the following information: 1. Income of BMR tenant households, reviewed annually; 2.. Identification of all Inclusionary Units (very low-, low- and moderate- income units) within the development; 3. Monthly rents charged to all BMR tenant households; and 4. Vacancy of Inclusionary Units during. the previous year. This report will be due annually on October 31st. The City of Dublin Housing Staff will send a reminder letter to the management firm, with a copy of the Annual Report form for completion and certification at least three months prior to the anniversary date. This form must be completed and returned to the City by the anniversary date. G:~PA#~2001W 1-0381nclusionary ZOA~Inclusionary GuidelinesUnclusionary Guidelines -Final on 429-0S.doc Apri129, 2005 22 f~ RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF DUBLIN, 100 Civic Plaza Dublin, Califomia 94568 Attn: City Clerk To be recorded without fee. (Space Above This Line For Recorder's Use Only) (Gov. Code, §§ 6103 and 27383.) RESALE RESTRICTION AGREEMENT AND OPTION TO PURCHASE Owner: Property Address: Dublin, Califomia Name of Development: Positano This RESALE RESTRICTION AGREEMENT AND OPTION TO PURCHASE ("Agreement") is entered into by and between the CITY OF DUBLIN, a Califomia municipal corporation (the "City") and ("Owner") regarding certain improved real property which is more particularly described in Exhibit A attached hereto and incorporated herein and commonly known as ,Dublin, CA, (the "Property") effective as of , 20_ ("Effective Date"). City and Owner are hereinafter collectively referred to as the "Parties." RECITALS A. The City has Inclusionary Zoning Regulations (Dublin Municipal Code Chapter 8.68) (the "Regulations") that require developers of rental and ownership housing to construct within their projects units that are affordable to very low-, low-, and moderate- income households ("the Program"). To further its goal of creating affordable home ownership opportunities for very low-, low-, and moderate-income persons and families, the City has initiated a program for the sale of some homes at a price below their market rate ("Program"). Pursuant to the Program, developers of housing developments agree to set aside a certain number of units for purchase or rent, as applicable, by very low-, low-, and moderate-income persons and families, as defined herein. B. Owner is an eligible [very low-, low- ormoderate-]income purchaser under the Program, intends to live in the Property as an owner occupant, and agrees to maintain the Property as Owner's principal residence. ssa8as.2 -1- Form Revised May 21, 2007 Exhibit 7 i~Pp, ~±~/" ~~ "! C. In order to maintain and preserve the Property as housing affordable to .eligible [very low-, low-, ormoderate-]income purchasers, it is necessary to restrict the use and resale of the Property through imposition of the occupancy and resale restrictions set forth herein. These restrictions are intended to prevent initial and subsequent purchasers from using the Property for purposes incompatible with the Program and realizing unwan-anted gains from sales of the Property at unrestricted prices. The terms and conditions of this Agreement are intended to provide the necessary occupancy and resale restrictions to ensure that the Property is used, maintained, and preserved as housing affordable to eligible [very low-, low-, ormoderate-]income purchasers. To further serve the purposes of the Program, it is necessary that the City be granted an option to purchase the property so that the property may be resold by the City to an eligible household. D. The Property constitutes a valuable community resource by providing decent, safe, and sanitary housing to persons and families of [very low, low, or. moderate] income who otherwise would be unable to afford such housing. To protect and preserve this resource it is necessary, proper, and in the public interest for the City to administer occupancy and resale controls consistent with the Program and the Regulations by means of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the substantial economic benefits inuring to Owner and the public. purposes to be achieved under the Program, Owner and City hereby agree as follows: 1. Definitions. a. "Affordable Unit Cosy' shall be as defined in the Regulations, as follows: "Owner-occupied units are deemed affordable units if the sales price results in annual housing expenses that do not exceed 35% of income level for very-low-, low-, and moderate-income households, adjusted for household size and as defined below. For very low-income owner occupied units, the unit shall be deemed an affordable unit if the sales price results in annual housing expenses that do not exceed 35% of the maximum in the very low-income level, adjusted for household size and as defined below." b. "Area [Very Low, Low, or Moderate] Income for Alameda County" means those income and eligibility levels determined, updated, and published each year by the California Department of Housing and Community Development, based on Alameda County median income levels, adjusted for household size. c. "Persons and families of [very low, low, or moderate] income" means persons and families whose income does not exceed [fifty percent (50%); eighty percent (80%); or one hundred twenty percent (120%)] of the Area Median Income for Alameda County, as adjusted for household size. ssasasz -2- Form Revised May 21, 2007 d. Persons and families meeting the definition set forth in Paragraph 1.b above shall be referred to as "Eligible Households." 2. Program Requirements. a. Affordability Restrictions. Owner hereby covenants and agrees that during the term of this Agreement all of the requirements and restrictions of this Agreement shall apply, and the Property shall be sold or otherwise transferred only pursuant to the terms and conditions of this Agreement and only to (i) Eligible Households at a price not to exceed the Adjusted Resale Price, as defined in Paragraph 5, (ii) the City pursuant to Paragraph 3, at a price not to exceed the Adjusted Resale Price, as defined in Paragraph 5, or (iii) a permitted transferee pursuant to Paragraph 9. b. Disclosure. DURING THE TERM OF THIS AGREEMENT THERE SHALL BE NO SALE OR OTHER TRANSFER OF THE PROPERTY WITHOUT THE WRITTEN CERTIFICATION BY THE CITY THAT THE TRANSFEREE QUALIFIES AS AN ELIGIBLE HOUSEHOLD AND THAT THE PROPERTY IS BEING TRANSFERRED AT A PRICE NOT TO EXCEED THE ADJUSTED RESALE PRICE, WHICH IS CAPPED AT THE AFFORDABLE UNIT COST AS DEFINED IN PARAGRAPH 1.a. ANY SALE OR OTHER TRANSFER OF THE PROPERTY IN VIOLATION OF THIS COVENANT SHALL BE VOIDABLE BY THE CITY. c. Principal Residence Requirement. OWNER COVENANTS AND AGREES THAT HE/SHElTHEY SHALL OCCUPY THE PROPERTY AS HIS/HER/THEIR PRINCIPAL RESIDENCE FOR THE DURATION OF HIS/HER/THEIR OWNERSHIP AND SHALL NOT RENT OR LEASE THE PROPERTY OR PORTION THEREOF DURING THE TERM OF THIS AGREEMENT WITHOUT PRIOR WRITTEN APPROVAL OF CITY. Without limiting the generality of the foregoing, any absence from the Property by Owner for a period of ninety (90) or more days shall be deemed an abandonment of the Property as the principal residence of Owner in violation of the conditions of this Paragraph. Upon request by the City made from time to time, the Owner of the Property shall submit an affidavit to the City certifying that the Property is the Owner's principal residence and provide such documents and other evidence as may be requested to verify Owner's compliance with this requirement. Abandonment of the Property shall constitute an Option Event (as defined in Paragraph 3.c below) and shall entitle the City to exercise its Option to purchase the Property. 3. Option to Purchase. a. Grant of Option to Purchase. Owner hereby grants to the City an option ("Option") to purchase all. of Owner's right, title and interest in and to the Property upon the occurrence of an Option Event (defined in Paragraph 3.c below), subject to the terms and conditions contained herein. b. Assignment of the Option. The City may assign the Option to another government entity, anon-profit affordable housing provider or a person or family that qualifies as an Eligible Household. The City's assignment of the Option shall not extend any time limits contained herein with respect to the exercise period of the Option or the period within which the Property must be purchased. ssaaas.2 -3- Form Revised May 21, 2007 ~~ ~.~ ~•J c. Events Giving Rise to Right to Exercise Option. The City shall have the right to exercise its Option upon the occurrence of any of the following events (each, an "Option Event"): 3.d.i below); Receipt of a Notice of Intent to Transfer (defined in Paragraph ii. Any actual, attempted or pending sale, conveyance, transfer, lease or other attempted disposition of the Property or of any estate or interest therein, except as provided in Paragraph 10 below; iii. Any actual, attempted or pending encumbrance of the Property, including without limitation by way of mortgage or deed of trust, or by judgment, mechanics, tax or other lien, except as provided in Paragraph 9 below; iv. Recordation of a notice of default and/or notice of sale pursuant to California Civil Code section 2924 (or successor provisions) under any deed of trust or mortgage with a power of sale encumbering the Property; the Property; v. Commencement of a judicial foreclosure proceeding regarding vi. Execution by Owner of any deed in lieu of foreclosure transferring ownership of the Property; vii. Commencement of a proceeding or action in bankruptcy, whether voluntary or involuntary, pursuant to Title 11 of the United States Code or other bankruptcy statute, or any other insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or trusteeship, concerning the Owner; or viii. Any violation by Owner of any provision of this Agreement including, without limitation, the conditions set forth in Paragraph 2 above. d. Method of Exercising the Option. i. Notice of Intent to Transfer. If Owner desires to sell, convey, transfer (other than pursuant to Paragraph 9 below), lease, encumber (other than pursuant to Paragraph 10 below) or otherwise dispose of the Property or of any estate or interest therein, no Tess than 45 days prior to the date of such aroposed sale, conveyance, transfer, lease, encumbrance or disposition, Owner shall notify City in writing to that effect (the "Notice of Intent to Transfer"). The Notice of Intent to Transfer shall be in substantially the form attached hereto as Exhibit B. In the case of a proposed sale of the Property to an identified prospective purchaser, the Owner shall submit to the City, together with the Notice of Intent to Transfer, a copy of the prospective purchaser's income certification, a list of all assets owned by the prospective purchaser, and other financial information reasonably . requested by City, in a form approved by the City, along with the income certification to be provided to any lender making a loan to the prospective purchaser. The City may require documentation evidencing and supporting the income and other financial information contained in the certifications. 96as4s•2 -4- Form Revised May 21, 2007 198~as~ ii. Notice of Exercise. Upon the occurrence of any Option Event, the City may exercise its Option by delivering notice, pursuant to Paragraph 17 and within the time period specified in Paragraph 3.d.iv, to Owner of City's intent to exercise such Option pursuant to the terms of this Agreement ("Notice of Exercise"). The Notice of Exercise may be in the form attached hereto and incorporated herein as Exhibit C, or in such other form as the City may from time to time adopt. If the Option Event relates to the potential foreclosure of a mortgage under Paragraphs 3.c.iv, 3.c.v, or 3.c.vi, then the City shall also deliver the Notice of Exercise to the mortgagee or beneficiary under such mortgage, at such mortgagee's or beneficiary's address of record in the Office of the Recorder of Alameda County. iii. Notice of Consent to Transfer. If the City does not exercise the Option, it may give its consent to the occurrence of the Option Event ("Consent to Transfer"). If the Option Event involves a proposed sale of the Property to a prospective purchaser, the City's consent shall be conditioned upon (i) the proposed purchaser's qualification as an Eligible Household; (ii) the sale of the Property at a price not to exceed the Adjusted Resale Price; (iii) the proposed purchaser's execution of a Disclosure Statement in the form attached hereto as Exhibit F or such other form or forms as may be promulgated by the City; (iv) the proposed purchaser's assumption of Owner's duties and obligations under this Agreement pursuant to a written assumption agreement in a form acceptable to City, or execution of an agreement substantially similar to this Agreement, within thirty (30) days after the Consent to Transfer has been delivered to Owner and recordation of such assumption agreement or substitute agreement; (v) the proposed purchaser's execution of a Performance Deed of Trust in the form attached hereto as Exhibit G; and (vi) the seller's payment of the City's Affordable Home Ownership Unit 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. SELLER SHALL PAY REAL ESTATE COMMISSIONS, IF ANY, WHICH SHALL NOT EXCEED 6% OF THE ACTUAL SALES PRICE. If the prospective purchaser (i) fails to qualify as an Eligible Household, (ii) fails to execute and deliver the Disclosure Statement to the City, (iii) fails to execute and deliver to the City an assumption agreement or an agreement substantially similar to this Agreement within such thirty (30) day period, or (iv) fails to execute and deliver to the City a Performance Deed of Trust in the form attached hereto as Exhibit G, then the Consent to Transfer shall expire and the City may, at its option, either notify Owner of the disqualification, thereby entitling Owner to locate another purchaser who qualifies as Eligible Household, or exercise the Option, as if no Consent to Transfer had been delivered. iv. Time Period for Notice. The City shall deliver a Consent to Transfer, if applicable, not later than thirty (30) days after the date. that it receives notification of an Option Event. The City shall deliver a Notice of Exercise, if applicable, on or before the date which is the later to occur of the following: (i) thirty (30) days after the date that the City receives notification of an Option Event or (ii) fifteen (15) days after a Consent to Transfer has expired. For purposes of computing commencement of the delivery periods, the City shall be deemed to have received notification of an Option Event on the date of delivery of a Notice of Intent to Transfer, pursuant to the terms of Paragraph 17 below or on the date it actually receives notice of default, summons and complaint or other pleading, or other writing specifically stating that an Option Event has occurred. The City shall have no obligation to deliver a Notice of Exercise or Consent to Transfer, and the applicable time period for exercise of the Option shall not commence to run, unless and until 964846.2 -5- Form Revised May 21, 2007 /~9 has`? the City has received notification of an Option Event in the manner specified in this subparagraph. If there is a stay or injunction imposed by court order precluding the City from delivering its Consent to Transfer or Notice of Exercise within the applicable time period, then the running of such period shall cease until such time as the stay is lifted or the injunction is dissolved and the City has been given written notice thereof, at which time the period for delivery of a Consent to Transferor Notice of Exercise shall again begin to run. v. Notice of Abandonment. If the City fails to deliver a Notice of Exercise or Consent to Transfer within the time periods set forth in Paragraph 3.d.iv, upon request by Owner, the City shall cause to be filed for recordation in the Office of the Recorder of Alameda County, a notice of abandonment, which shall declare that the provisions of the Option are no longer applicable to the Property. Unless Owner requests recordation of notice of abandonment within 30 days of the City's failure to deliver Notice of Exercise or Consent to Transfer, the City shall have no obligation to record the notice of abandonment. Upon recordation of a notice of abandonment, the Option shall terminate and have no further force and effect. If the City fails to record a notice of abandonment, the sole remedy of Owner shall be to obtain a judicial order instructing prompt recordation of such a notice. vi. Right to Reinstatement. If the Option Event is the recordation of a notice of default, then the City shall be deemed to be Owner's successor in interest under California Civil Code Section 2924(c) (or successor section) solely for purposes of reinstatement of any mortgage on the Property that has led to the recordation of the notice of default. As Owner's deemed successor in interest, the City shall be entitled to pay all amounts of principal, interest, taxes, assessments, homeowners' association fees, insurance premiums, advances, costs, attorneys' fees and expenses required to cure the default. If the City exercises the Option, then any and all amounts paid by the City pursuant to this Paragraph shall be treated as Adjustments to the Base Resale Price for the Property, as defined in Paragraph 5 below. vii. Inspection of Property. After receiving a Notice of Intent to transfer or delivering a Notice of Exercise, the City shall be entitled to inspect the Property one or more times prior to the close of escrow to determine the amount of any Adjustments to the Base Resale Price. Before inspecting the Property, the City shall give Owner not less than forty-eight (48) hours written notice of the date, time and expected duration of the inspection. The inspection shall be conducted between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday, excluding court holidays, unless the parties mutually agree in writing to another date and time. Owner shall make the Property available for inspection on the date and at the time specified in the City's request for inspection. viii. Escrow. Promptly after delivering a Notice of Exercise, the City shall open an escrow account for its purchase of the Property. Close of escrow shall take place on such date which is the later to occur of the following, (a) sixty (60) days after a Notice of Exercise has been delivered, or (b) ten (10) days after Owner has performed all acts and executed all documents required for close of escrow. Prior to the close of escrow, the City shall deposit into escrow with a title company of City's choosing, the Adjusted Resale Price as defined in Paragraph 5 below and all escrow fees and closing costs to be paid by City. Commissions (not to exceed 6% of the actual sales price), closing costs and title insurance shall be paid pursuant to the custom and practice in the County of Alameda 96asas.2 -6- Form Revised May 21, 2007 and ~ ~ at the time of the opening of escrow, or as may otherwise be provided by mutual agreement. Owner agrees to perform all acts and execute all documents reasonably necessary to effectuate the close of escrow and transfer of the Property to the City. ix. Proceeds of Escrow;. Removal of Exceptions to Title. Prior to close of escrow, Owner shall cause the removal of all exceptions to title to the Property that were recorded after the Effective Date with the exception of (i) taxes for the fiscal year in which the escrow for this transaction closes, which taxes shall be prorated as between Owner and City as of the date of close of escrow; (ii)quasi-public utility, public alley, public street easements, and rights of way of record, and (iii) such other liens, encumbrances, reservations and restrictions as may be approved in writing by City ("Permitted Exceptions"). The purchase price deposited into escrow by the City shall be applied first to the payment of any and all Permitted Encumbrances (as defined in Paragraph 10) recorded against the Property in order of lien priority, and thereafter to the payment of Owner's share of escrow fees and closing costs. Any amounts remaining after the purchase price has been so applied, if any, shall be paid to Owner upon the close of escrow. If the purchase price is insufficient to satisfy all liens and encumbrances recorded against the Property, the Owner shall deposit into escrow such additional sums as may be required to remove said liens and encumbrances. In the event that the City agrees to proceed with close of escrow prior to the date that Owner has caused all exceptions to title recorded after the Effective Date other than Permitted Exceptions to be removed, then Owner shall indemnify, defend and hold City harmless from any and all costs expenses or liabilities (including attorneys' fees) incurred or suffered by City that .relate to such exceptions and their removal as exceptions to title to the Property. 4. Base Resale Price. Prior to adjustment pursuant to Paragraph 5 the base resale price ("Base Resale Price") of the Property shall be the lowest of: a. Median Income. The original price ("Base Price") paid by Owner for acquisition of the Property pursuant to the Program, increased (but not decreased) by an amount, if any, equal to the Base Price multiplied by the percentage increase in the median household income ("Median Income") for Alameda County published by the California Department of Housing and Community Development, Division of Housing Policy Development, between the Effective Date and the date that the City receives notification of an Option Event; or b. Fair Market Value. The fair market value of the Property as determined by an appraiser selected and paid for by Owner and approved in writing by the City. To compute the Base Resale Price, the City may use the Base Resale Price Worksheet attached as Exhibit D hereto, or such other form as the City may from time to time adopt. 5. Adjustments to Base Resale Price. Subject to the Affordable Unit Cost restriction described in subparagraph (d) below, the Base Resale Price shall be increased or decreased, as applicable, by the following adjustment factors ("Adjustment"): 964&t6.2 -7- Form Revised May 21, 2007 ~ i ~as~ a. Capital Improvements. An increase for capital improvements made to the Property, but only if the amount of such improvements has been previously approved in writing by the City after Owner has submitted original written documentation of the cost to the City for verification. The amount of the Adjustment shall equal the original cost of any such capital improvements. b. Damages. A decrease by the amount necessary to repair damage to the Property, if any, and to place the Property into saleable condition as reasonably determined by the City upon City's exercise of its Option hereunder, including, without limitation, amounts attributed to cleaning; painting; replacing wom carpeting and draperies; making necessary structural, mechanical, electrical and plumbing. repairs; and repairing or replacing built-in appliances and fixtures. Owner hereby covenants to, at Owner's expense, maintain the Property in the same condition as in existence on the date of City's Notice of Exercise, reasonable wear and tear excepted. c. Advances by the City. A decrease in an amount equal to the sum of all costs advanced by the City for the payment of mortgages, taxes, assessments, insurance premiums, homeowner's association fees and/or associated late fees, costs, penalties, interest, attorneys' fees, pest inspections, resale inspections and other expenses related to the Property, which Owner has failed to pay or has permitted to become delinquent. d. Adjusted Resale Price Not to Exceed Affordable Unit Cost. The Base Resale Price as adjusted, is hereinafter referred to as the "Adjusted Resale Price.° Notwithstanding any other provision hereof to the contrary, in no event shall the Adjusted Resale Price exceed the Affordable Unit Cost. 6. Priority and Effectiveness of the Option. a. Recordation. This Agreement shall be recorded in the Office of the Recorder of the County of Alameda on or as soon as practicable after the Effective Date. The Option shall have priority over any subsequent sale, conveyance, transfer, lease or other disposition or encumbrance of the Property, or of any estate or interest therein, and in the event of exercise of the Option by City, the City shall take the Property subject only to Permitted Exceptions. Except as otherwise provided in Paragraph 7.a, the exercise of the Option by the City at any time and from time to time shall not extinguish the Option or cause a merger of the Option into any estate or other interest in the Property, and the Option shall continue to exist and be effective with respect to the Property against any and all subsequent owners in accordance with the terms and conditions hereof. b. Request for Notice of Default. The City shall file a Request for Notice of Default for recordation in the Office of the Recorder of the County of Alameda promptly upon execution of this Agreement (see Exhibit E). c. Subordination. The City agrees that in order to assist qualified purchasers to secure purchase money financing for the acquisition of the Property, the City will enter into a subordination agreement with a senior purchase money lender to subordinate this Agreement under such terms as the City and the senior purchase money lender shall negotiate. In the event that such a subordination agreement is required, Owner ssasas.2 $ Form Revised May 21, 2007 o2oa ~ shall pay the City a Refinance Charge Fee in an amount to be established from time to time by the City Council and which is currently set at $200 per transaction. 7. Survival of Option Upon Transfer. a. In General. The City's right to exercise the Option shall survive any transfer of the Property by Owner. Each transferee, assignee or purchaser of the Property during the term hereof shall be required to execute an agreement substantially in the form of this Agreement, provided that the term of any such agreement shall be for the duration of the term hereof as of the date of any such transfer, assignment or sale. The Option may be exercised against the Property throughout the term hereof, regardless of whether the Property is owned, possessed or occupied by Owner or any successor, transferee, assignee, heir, executor, or administrator of Owner, regardless of household income (if applicable) including adebtor-in-possession, debtor or trustee pursuant to Title 11 of the United States Code. Notwithstahding the foregoing, the Option shall not survive (i) the sale and transfer of the Property to a third party purchaser pursuant to a judicial or non judicial foreclosure or a deed-in-lieu of foreclosure under a power of sale contained in a mortgage or deed of trust held by an institutional lender, or (ii) the recording of an instrument conveying Owner's interest in the Property to the City, or its assignee, provided the conveyance is in accordance with the terms of this Agreement. b. HUD Insured Mortgage. If Owner has acquired the Property by a mortgage insured by the Secretary of the United States Department of Housing and Urban Development, and a notice of default has been recorded pursuant to California Civil Code Section 2924 (or successor provisions), then this Option shall automatically terminate if title to the Property is transferred by foreclosure or deed-in-lieu of foreclosure, or if the insured mortgage is assigned to the Secretary. 8. Voidable Transfers. As long as the Option has not been abandoned pursuant to Paragraph 3.d.v, any actual or attempted sale, conveyance, transferor other disposition of the Property, or of any estate or interest therein, in violation of the terms and conditions of this Agreement, shall be voidable at the election of the City. 9. Permitted Transfers. Provided that the transferee assumes, within 30 days of a written request by the City, all of Owner's duties and obligations under this Agreement pursuant to a written assumption agreement in a form acceptable to City, or at City's election, execution of an agreement substantially similar to this Agreement, the following transfers ("Permitted Transfers") of title to the Property, or of any estate or interest therein, shall not be subject to the City's prior approval, shall not trigger,the exercise of the Option, and shall not be considered Option Events: (a) a good-faith transfer by gift, devise or inheritance to Owner's spouse or issue; (b) a taking of title by a surviving joint tenant; (c) a court-ordered transfer of title to a spouse as part of a divorce or dissolution proceeding; (d) a transfer by Owner into an inter vivos trust in which the Owner is a beneficiary and the Owner continues to occupy the property as his/her primary residence; (e) an acquisition of title, or of any interest therein, in conjunction with marriage; or (f) any good faith transfer to an Eligible Household. Notwithstanding any Permitted Transfer, the Option shall remain effective with respect to the Property for the duration of the term hereof. ss4sas.2 -9- Form Revised May 21, 2007 a~~~ ~5'~ 10. Permitted Encumbrances. This Option shall not become exercisable as the result of Owner's encumbering the Property (a) for the purpose of securing financing to purchase the Property pursuant to the Program, (b) to refinance indebtedness incurred to purchase the Property pursuant to the Program, provided that prior to refinancing the Property Owner shall obtain City's approval of the refinancing pursuant to section 11 below, which shall not be unreasonably withheld, or (c) to make necessary repairs to the Property in an amount approved by City pursuant to Paragraph 5a ("Permitted Encumbrances"). The maximum aggregate amount of such encumbrances outstanding at any time (the "Permitted Encumbrance Amount") shall not exceed an amount equal to one-hundred percent (100%) of the Base Resale Price calculated as provided in Paragraph 4. The Permitted Encumbrance Amount shall be calculated as if the City had received notification of an Option Event on the earlier of (a) the date on which the deed of trust or mortgage securing the indebtedness is filed for record in the Office of the Recorder of the County of Alameda, or (b) the date the City receives Notice of Intent to Transfer pursuant to Paragraph 3.d.i above. Owner hereby covenants and agrees that he/she/they shall use his/her/their best efforts to ensure that any deed of trust or other agreement encumbering the property shall include provisions providing for notice to be delivered to City of any default thereunder and for City's right to cure such default at City's election. 11. Refinancing; Junior Loans. a. Initial Financing. Any prepayment and refinance of any financing used to purchase the Property ("the Initial Financing") shall not be permitted unless expressly approved by the City in writing, and the City may approve such refinancing only if all of the following conditions are met: i. the refinance reduces Owner's monthly payments of principal and interest on the Initial Financing or shall be used to finance capital improvements preapproved by the City ("Eligible Capital Improvements"); ii. the refinance does not cause the principal amount of all debt secured by the Property to exceed the then outstanding balance (plus refinancing and closing costs) of the Initial Improvements plus the cost of any Eligible Capital Improvements that shall be made by Owner; iii. the refinance does not result in Owner receiving any cash from the refinance other than for Eligible Capital Improvements permitted pursuant to Paragraphs 11.a.i and 11.a.ii; iv. the refinance does not cause the Property's loan to value ratio (calculated by comparing the total debt secured by the Property to the Adjusted Resale Price of the Home) to exceed the loan to value ratio for the Property at the time of initial purchase by the Owner (calculated by comparing the total debt secured by the Property to the Purchase Price paid by the Owner). v. the total outstanding balance of principal and any accrued interest on all loans secured by the Property does not exceed the Adjusted Resale Price, calculated by the City pursuant to Paragraph 5 of this Agreement. ssasas.2 -10- Form Revised May 21, 2007 ~~ ~ ago b. Junior Loans. Mortgage loans or equity lines of credit junior in lien priority to the Performance Deed of Trust are not permitted, except as when expressly approved by the City in writing. The City shall only approve junior mortgage loans or equity lines of credit as follows: i. the loan or equity line of credit does not does not cause the Property's loan to value ratio (calculated by comparing the total debt secured by the Property to the Adjusted Resale Price of the Property) to exceed the loan to value ratio for the Property at the time of initial purchase by the Owner (calculated by comparing the total debt secured by the Property to the purchase paid by the Owner); ii. the proceeds of such loan or equity line of credit are used only for Eligible Capital Improvements; and iii. the total outstanding balance of principal and any accrued interest on all loans secured by the Property does not exceed the Adjusted Resale Price, calculated by the City pursuant to Paragraph 5 of this Agreement. c. Eligible Capital Improvements. In the event (i) the Owner refinances the Initial Financing in accordance with Paragraph 11.a, or (ii) the Owner borrows a junior loan or takes an equity line of credit in accordance with Paragraph 11.b, and the funds from such refinance, loan, or line of credit shall be used for Eligible Capital Improvements, Owner shall provide evidence to City, in a form acceptable to City in its sole and absolute discretion, that any amount of funds received by Owner for such Eligible Capital Improvements shall be and are used for the construction of such Eligible Capital Improvements. d. Affordable Housing Cost; Subordination. The City and the Owner agree that the requirements of this Paragraph 11 are necessary to ensure the continued affordability of the Property to Owner and to minimize the risk of loss of the Property by Owner through default and foreclosure of mortgage loans. Owner further acknowledges that violation of the provisions of this Paragraph 11 shall constitute a Default under this Agreement. In no case shall this Agreement and the Performance Deed of Trust be in lower than third lien position on the Property. Any subordination agreement to be executed by City shall include notice and cure rights for City regarding any defaults in the mortgage to which the City is subordinating. 12. Obligation of Owner After Option Abandonment. If the City records a notice of abandonment of the Option, then the Property may be sold by Owner to a third party without restriction as to price; however, upon such sale, Owner shall pay to City an amount ("City's Share") equal to twenty-five percent (25%) of the difference between (a) the- actual sales price net of reasonable and customary real estate commissions paid (such commissions not to exceed six percent (6%) of the actual sales price), and (b) the Adjusted Resale Price. The City's Share shall be paid to the City concurrently with close of escrow on the sale of the Property, or upon receipt by Owner of the sale price for the Property, whichever shall first occur. 13. Limits on Liability. In no event shall the City become liable or obligated in any manner to Owner by reason of the assignment of this Agreement or the Option, nor shall ssa&+s.z -11- Form Revised May 21, 2007 aes~as~ City be in any way liable or obligated to Owner for any failure of the Ciry's assignee to consummate a purchase of the Property or to comply with the terms of this Agreement or the Option, or any escrow instructions or agreement for the purchase of the Property. 14. Insurance Proceeds and Condemnation Award. In the event the Property is destroyed and insurance proceeds are distributed to Owner instead of being used to rebuild the Property, or, in the event of condemnation, if the proceeds thereof are distributed to Owner, any surplus of proceeds remaining after payment of the senior liens and encumbrances on the Property shall be distributed as follows: that portion of the surplus up to, but not to exceed, the net amount Owner would have received pursuant to Paragraph 3.d.ix had the City exercised its Option on the date of the destruction of condemnation valuation date shall be distributed to Owner, and the balance of such surplus, if any, shall be distributed to the City. 15. Effective Date. The rights and obligations of the City and Owner set forth in this Agreement shall be effective as of the Effective Date. 16. Term of Agreement and Option. The restrictions contained herein and the City's option to purchase the Property shall continue in perpetuity commencing on the Effective Date. 17. Notices. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Parry may designate by written notice delivered to the other Party in accordance with this Section. All such notices shall be sent by: a. personal delivery, in which case notice shall be deemed delivered upon receipt; b. certified or registered mail, return receipt requested, in which case notice shall be deemed delivered two (2) business days after deposit, postage prepaid in the United States mail; c. nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) day after deposit with such courier; or d. facsimile transmission, in which case notice shall be deemed delivered on transmittal, provided that a transmission report is generated reflecting the accurate transmission thereof. City: City of Dublin, 100 Civic Plaza Dublin, California 94568 Attn: City Manager Owner: At the address of the Property 964846.2 -12- Form Revised May 21, 2007 arc ~ ago 18. Remedies Upon Breach. a. Specific Performance. Owner acknowledges that any breach in the performance of its obligations under this Agreement shall cause irreparable harm to the City. Owner agrees that the City is entitled to equitable relief in the form of specific performance- upon its exercise of the Option, and that an award of damages shall not be adequate to compensate the City for Owner's failure to perform according to the terms of this Agreement. or equity. b. Other Remedies. City shall have all of the remedies provided for at law 19. General Provisions. a. Attorneys' Fees. If either party initiates legal proceedings to interpret or enforce its rights under this Agreement, the prevailing party in such action shall be entitled to an award of reasonable attorneys' fees and costs in additions to any other recovery to which it is entitled under this Agreement. b. No Joint Venture; No Third-Party Beneficiary. No joint venture or other partnership exists or is created between the Parties by virtue of this Agreement. Except as expressly stated herein, this Agreement does not benefit any third party. c. Successors; Assignment.. This Agreement shall inure to the benefit of and shall be binding upon the Parties to this Agreement and their respective heirs, executors, administrators, successors and assigns. City shall have the right to assign all of its rights and obligations under this Agreement without the consent of Owner. d. Entire Agreement; Amendment. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior negotiations, correspondence, understandings and agreements with respect thereto. There are no representations, promises, agreements or other understandings between the Parties. relating to the subject matter of this Agreement that are not expressed herein. This Agreement may be modified only by an instrument in writing executed by the Parties or their respective successors in interest. e. Survival; No Merger. All of the terms, provisions, representations, warranties and covenants of the Parties under this Agreement shall survive the close of escrow of any sale of the Property and shall not be merged in any deed transferring the Property. f. Authority And Execution. Each Party represents and warrants that it has full power and authority to enter into this Agreement and to undertake all of its obligations hereunder, that each person executing this Agreement on its behalf is duly and validly authorized to do so. g. Severability. The invalidity or unenforceability of any term or provision of this Agreement shall not impair or affect the remainder of this Agreement, and the 964846.2 -13- Form Revised May 21, 2007 ~~`~~~ remaining terms and provisions hereof shall not be invalidated but shall remain in full force and effect. h. Waiver; Modification. No waiver or modification of this Agreement or any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the Party to be charged therewith. No evidence or any waiver or modification shall be offered or received in evidence in any proceeding, arbitration, or litigation between the Parties arising out of or affecting this Agreement or the rights or obligations of any Party hereunder, unless such waiver or modification is in writing and duly executed as aforesaid. The provisions of this section may not be waived except as herein set forth. A waiver or breach of any covenant, condition or provision of this Agreement shall not be deemed a waiver of any other covenant, condition or provision hereof. i. Construction. The section headings and captions used in this Agreement are for convenience of reference only and shall not modify, define, limit or amplify any of the terms or provisions hereof. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Parties have prepared it. j. Governing Law. This Agreement shall in all respects be governed by and construed in accordance with the laws of the State of California. k. Time of the Essence. Time is of the essence in this Agreement as to each provision in which time is an element of performance. I. Further Assurances. Each Party will, upon reasonable request of the other Party, execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered, such further instruments and documents as may be reasonably necessary in order to fulfill the intents and purposes of this Agreement. m. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all which together. shall constitute one and the same instrument. [EXECUTION PAGE FOLLOWS] ss48as.2 -? 4- Form Revised May 21, 2007 a ~~ ~~~ r IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first written above. OWNER(S): ATTEST: CITY: CITY OF DUBLIN Richard Ambrose, City Manager City Clerk ssasas.2 -1 r Form Revised May 21, 2007 a~~~~~ STATE OF CALIFORNIA COUNTY OF On before me, , a Notary Public in and for said county and state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature STATE OF CALIFORNIA ) COUNTY OF ) (Seal) On before me, , a Notary Public in and for said county and state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the .same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) ssaaas:~ Form Revised May 7, 2007 a-o n~ asr~ STATE OF CALIFORNIA ) COUNTY OF ) On before me, , a Notary Public in and for said county and state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) ssasas-1 Form Revised-May 7, 2007 ~-r ~ a~ CERTIFICATE OF ACCEPTANCE (Pursuant to Government Code §27281) This is to certify that the interest in real property conveyed by the Resale Restriction Agreement and Option to Purchase dated from to the City of Dublin, a California municipal corporation, is hereby accepted by the undersigned office or agent on behalf of the City of Dublin pursuant to authority conferred by the Resolution No. dated ;and the grantee consents to recordation thereof by its duly authorized officer. Dated: By: Attest: City Clerk ssa~s•~ Form Revised May 7, 2007 a~a o~~~ EXHIBIT A LEGAL DESCRIPTION 9648a6_~ Form Revised May 7, 2007 ~i~ t~~~ EXHIBIT B FORM: NOTICE OF INTENT TO TRANSFER VIA CERTIFIED MAIL -RETURN. RECEIPT REQUESTED To: City of Dublin 100 Civic Center Dublin, California 94568 Attn: City Manager Date: Re: Notice of Intent to Transfer Pursuant to the terms of the Resale Restriction Agreement and Option to Purchase, dated the undersigned Owner(s), , hereby give(s) notice of his/her/their intent to transfer the property located at ,Dublin, Califomia (the "Property"). Owner may be contacted at the Property or at the following address: Owner's daytime telephone number is ~) [If applicable: The proposed transfer of the Property is to the following person(s): Name: .Address: Telephone: U ~ The proposed transfer is (check one): ^ Sale o Other Specify: Owner(s) signature(s): ssasas•~ Form Revised May 7, 2007 air ~ aso EXHIBIT C FORM: NOTICE OF EXERCISE Date: To: Owner or Transferee Address Re: Notice of Exercise The City of Dublin ("City") hereby gives notice that it is exercising its option to purchase the real property located at ,Dublin, California. The option has been granted to the City pursuant to the Resale Restriction Agreement and Option to Purchase between Owner and the City dated and recorded on as Instrument No. (The City has assigned its option to purchase the real property to .] An escrow for the purchase will be opened with the First American Title Company. City of Dublin By: Its: ssasas•~ Form Revised May 7, 2007 a ~.~ ~as~ EXHIBIT D tNCLUSIONARY ZONING BASE RESALE PRICE WORKSHEET Date: Owner: Address: Purchase. Price: Date of Purchase: Years Owned: years CALCULATION BASED ON INCREASE IN MEDIAN INCOME'"""' Present Median Income: $ Effective Date: Family of four, County of Alameda (at time of sale of unit) Effective Date: Original Median Income: $ Family of four, County of Alameda (at time of purchase of unit) Amount of Increase: Family of four, County of Alameda (Present median income minus original median income) Increase in Price: Method #1 Resale Price: x x = Based qn the above, the base resale rice as of this date, , is: By: ssaaas.~ Form Revised May 7, 2007 are ~a~~ EXHIBIT E REQUEST FOR NOTICE OF DEFAULT Order No. Escrow No. Loan No. WHEN RECORDED MAIL TO: CITY OF DUBLIN Dublin, Califomia Attn: (Space Above This Line For Recorder's Use Only) REQUEST FOR NOTICE UNDER SECTION 2924b CIVIL CODE In accordance with Section 2924b, Civil Code, request, is hereby made that a copy of any Notice of Default and a copy of any Notice of Sale under the Deed of Trust recorded as Instrument No. on , in the Official Records of Alameda County, Califomia, and describing land therein. as: executed by Dublin, Califomia ,Attn: as Trustor, in which is named as Beneficiary, and as Trustee, be mailed to the City of Dublin, By: NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE WILL BE SENT ONLY TO THE ADDRESS CONTAINED IN THIS RECORDED REQUEST. IF YOUR ADDRESS CHANGES, A NEW REQUEST MUST BE RECORED. STATE OF CALIFORNIA COUNTY OF On before me, , a Notary Public in and for said county and state, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the, instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) ssasas.~ Form Revised May 7, 2007 a ~ ~ .~~~ EXHIBIT F DISCLOSURE STATEMENT THERE ARE RESTRICTIONS ON THE SALE OF THE PROPERTY YOU ARE BUYING. EXCEPT FOR A TRANSFER TO THE CITY FOLLOWING CITY'S EXERCISE OF ITS OPTION TO PURCHASE, THIS PROPERTY MAY ONLY BE SOLD TO AN "ELIGIBLE HOUSEHOLD" AT A PRICE NOT TO EXCEED THE ADJUSTED RESALE PRICE WHICH IS CAPPED AT AN "AFFORDABLE UNIT COST." THIS MEANS THAT YOU MAY NOT SELL THE PROPERTY FOR MARKET VALUE TO WHOMEVER YOU LIKE. THESE RESTRICTIONS WILL BE IN EFFECT UNTIL ANY SALE OF THE PROPERTY IN VIOLATION OF THE RESTRICTIONS, SHALL BE VOIDABLE AT THE ELECTION OF THE CITY. TO DETERMINE WHO AN ELIGIBLE HOUSEHOLD IS, AND WHAT THE ADJUSTED RESALE PRICE AND AFFORDABLE HOUSING COST ARE, YOU SHOULD CONTACT THE OF THE CITY OF DUBLIN. YOU SHOULD READ THE RESALE RESTRICTION AGREEMENT AND OPTION TO PURCHASE RECORDED AGAINST THE PROPERTY. YOU MAY OBTAIN A COPY FROM THE CITY OF DUBLIN OR FROM THE ESCROW COMPANY. YOU SHOULD ALSO BE AWARE THAT A PERFORMANCE DEED OF TRUST WILL BE RECORDED AGAINST THE PROPERTY TO ENSURE COMPLIANCE WITH THE RESALE RESTRICTION AGREEMENT AND OPTION TO PURCHASE YOU MAY OBTAIN A COPY FROM THE CITY OF DUBLIN OR FROM .THE ESCROW COMPANY. i HAVE READ THE FOREGOING AND I UNDERSTAND WHAT IT MEANS. BUYER BUYER 790277.2 Form Revised May 7, 2007 a~$ ~~5~ EXHIBIT G FORM: PERFORMANCE DEED OF TRUST ~so277.z Form Revised May 7, 2007 ~~~~~ 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 tine for Recorder's use SECONDARY UNIT REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS Owner: Property Address: Dublin, Califomia Name of Development: Positano This Secondary Unit Regulatory Agreement and Declaration of Restrictive Covenants (this "Agreement") 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 grid 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 Dublin, 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. Secondary Unit Regulatory Agreement Second Unit Regulatory Agreement 5.07.07.DOC DRAFT: May 7, 2007 Page 1 of 10 Exhibit 8 ad o~as~ B. The developer of the Project chose to satisfy its obligations through among other things the construction of 13 secondary units on some of the residential lots in the Project, including on the Property, 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. O Low-income: 50% to 80% of Area Median Income. O Moderate-income: 80% to 120% of Area Median Income. "Area Median Income" or "AMI" means the area median income for Alameda County, Califomia, adjusted for household size, published periodically by the Califomia Department of Housing and Community Development ("HCD") in Section 6932 of Title 25 of the Califomia 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-twelfth 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. 2. Use and Affordability Restrictions. Owner represents and warrants that it has not entered into any agreement that would restrict or compromise its ability to comply with Secondary Unit Regulatory Agreement DRAFT: May 7, 2007 Second Unit Regulatory Agreement 5.07.07.DOC Page 2 of 10 ~~' a 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 Qualifying Rent and occupied by Eligible Households. Owner shall ensure that language is contained in all leases and contracts with tenants 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 gtalifying 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 Housing 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. Reporting Requirements. 3.1 Tenant Verification. Owner or its authorized agent shall obtain from each household prior to initial occupancy of each Restricted Unit, and on every anniversary thereafter, written documentation verifying each tenant's eligibility containing all of the following, including additional documentation as City may reasonably require (collectively hereinafter "VNritten Verification"): (a) Number of people in the household;. and (b) Total household income. Owner or its authorized agent shall retain Written Verifrcation 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. 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 Secondary Unit Regulatory Agreement DRAFT: May 7, 2007 Second Unit Regulatory Agreement 5.07.07.DOC Page 3 Of 10 ~~ ~- 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 (vi) the total household income of residents. Upon City's request, Owner shall include with the Annual Report, a copy of the Written Ver~ication 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 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, unless this Agreement is terminated earlier by City in a recorded writing. 4.3 Reconveyance. Upon the termination of this Agreement, the Parties agree to execute and record appropriate instruments to release and discharge the terms of this Agreement; provided, however, the execution and recordation of such instruments shall not be necessary or a prerequisite to the termination of this Agreement in accordance with its terms. 5. Binding Upon Successors; Covenants to Run with the Land. 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 spec~cally 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 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 Secondary Unit Regulatory Agreement DRAFT: May 7, 2007 Second Unit Regulatory Agreement 5.07.07.DOC Page 4 Of 10 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. Property Manaaement; Repair and Maintenance- Marketing. 6.1 Management 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 Security. 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 illegal 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 Property 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. 6.8 Property Damage 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. Secondary Unit Regulatory Agreement DRAFT: May 7, 2007 second unit Regulatory Agreement 5.07.07.DOC Page 5 of 10 ,~'a ~~~ 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 shall 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 default issued to Owner concurrently with provision of such notice to Owner (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 Owner within the same period of time provided to Owner for such cure, extended by an additional thirty (30) days. 8.3 Mortgagee Protection. No violation of any provision contained herein shall defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value upon all or any portion of the 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 Property that such violation has occurred. Secondary Unit Regulatory Agreement DRAFT: May 7, 2007 Second Unit Regulatory Agreement 5.07.07.DOC Page 6 of 10 o~a5 ~~~ 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 equitable relief seeking the specific performance of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing any violation of such terms and conditions, and/or seeking declaratory relief; (b) For violations of obligations with respect to rents for Restricted Units, impose as liquidated damages a charge in an amount equal to the actual amount collected in excess of the Qualifying Rent; (c) Pursue any other remedy allowed at law or in equity. 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 obligation 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. 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 Secondary Unit Regulatory Agreement DRAFT: May 7, 2007 Second Unit Regulatory Agreement 5.07.07.DOC Page 7 of 10 a~ ~ 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 shall 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 confirmed 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 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. Secondary Unit Regulatory Agreement DRAFT: May 7, 2007 Second Unit Regulatory Agreement 5.07.07.DOC Page 8 of 10 ~~~ ....~. 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 by 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-Liability of City and City Officials, Employees and Agents. 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 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. 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. 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 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. SIGNATURES ON FOLLOWING PAGE. Secondary Unit Regulatory Agreement DRAFT: May 7, 2007 Second Unit Regulatory Agreement 5.07.07.DOC Page 9 Of 10 aa8~a~ IN WITNESS WHEREOF, the Parties have executed this Agreement effective as of the date first written above. OWNER CITY OF DUBLIN By: Richard C. Ambrose City Manager Attest: Kay Keck Interim City Clerk Approved as to form: Elizabeth H. Silver City Attorney SIGNATURES MUST BE NOTARIZED. Secondary Unit Regulatory Agreement ~ DRAFT: May 7, 2007 Second Unit Regulatory Agreement 5.07.07.DOC Page 10 Of 10 aa~ ~ Exhibit A PROPERTY DESCRIPTION (Attach legal description.) ~ = rm y :J`? .""...` `"~ r ,-. .s.~ i a 1 ,.. -- 8 2 ' _ _"___ _ _ ~_ ~ r, r, :C J~ "i ~~.± 1 / i ~ f// ' f t ' ./ f // ~..- wt j ', .. t r § ...._ ~ !~ ~ .: / i ~ _ ,_ „~ .. i / ,~~ ,,w r ~_~~ ~. _ ~~_ Jr _ _ - - - t _ -~, . ~. ~~ .~ b ~ f i % - ~~ S -~ i ,~ - ~- ~ F ~ :~ _.. - _._. . _, $ 3 .. ] ~ . _.. T ~. ~ 3 .~. Ft '.. 1 ` s a F .i ...,_ < e,^+~ _- _ 5 r _ x ~ \ ~ F -...,........ ~ ., ~~' \ ~M ~ ~ . v, -~ s „ _ `~ ~ ~` ' / -~ ~. x r ..,.` r -~ _ :. , / _` . \ /. f, _l a 3~ ~~ SECOND UNIT ANNUAL SURVEY PLEASE FILL OUT FORM COMPLETELY AND RETURN TO CITY AT: CITY OF DUBLIN,100 CIVIC PLAZA, DUBLIN, CA 94568 Owner Name• Location of Property: , Daytime Phone Number: Your second unit is designated to be rented to a Very Low Low Moderate income household. The maximum rent that can be charged for the second units is $ *************************************************************************************** 1. Is the second unit being rented at this time? 2. What is the current rent being charged? (Attach copy of most recent rent check) 3. Current household size of second unit? (circle one): 1 2 3 4 people. 4. Total annual household income of second unit? YES NO I understand that there are restrictions on my property and if I choose to sell or refinance this coming year, I must first contact the City of Dublin Housing Staff at (925) 833-6610. In affixing my/our signature/s below, IIWe affirm that all information provided in this form is true and correct. UWe understand that if any information is falsely reported, the City of Dublin may take legal action against me/us. Signature of owner PRINT NAME Signature of owner PRINT NAME HAVE YOU FILLED OUT THE TOP PART OF THIS FORM?? date date Exhibit C a3a ~~5'~ STATE OF CALIFORNIA ) COUNTY OF ALAMEDA ) On , 20 before me, _ .Notary Public, the undersigned, personally appeared personally known to me proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that (he/she/they) executed the same in (hislher/their) authorized capacity(ies), and that by (hislher/their) signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal Signature r EXIIIBIT 9 Memorandum of Affordable Housing Agreement for the Construction of Inclusionary Units and the Payment of Fees In-Lieu of Constructing Inclusionary Housing Units ~~~~~~~ a33~.~~0 a~~~ a~ RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder's use MEMORANDUM OF AFFORDABLE ROUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. First Phase (247 Residential Lots) of the Fallon, Village Project This Memorandum of Affordable Housing Agreement for the Construction of Inclusionary Units and the Payment of Fees In-Lieu of Constructing Inclusionary Units (this "Memorandum") is entered into on this _ day of , 2007, by and between the City of Dublin, a Municipal Corporation (hereafter "City") and Dublin RE Investors, L.L.C., a California limited liability company, ("the Developer") 1. Pursuant to the Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of.Constructing Inclusionary Housing Units,. dated as of _, 2007 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 known generally as the Fallon Village Project and more specifically described in Exhibit A (the "Property"). These. obligations run with the land. 2.: The Agreement sets out the specific obligations for the construction of Inclusionary Units and payment of fees in Lieu thereof in conjunction with the initia1247- residential parcel phase of the development of the Property ("the First Phase"). It also obligates the Developer to make a Community Benefit Payment, as described in the Agreement, prior to issuance of building permits for each residential unit. Development on, and the City's approval of subsequent final maps that include, any portion of the Property beyond the First Phase shall require either an amendment to this Agreement or a subsequent affordable housing agreement ("the Subsequent Agreement") setting forth the manner in which the Regulations will be complied with for the remainder of the Project. The Agreement also contains the Developer's covenant, on behalf of itself, and its successors and assigns, that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased fmal maps a ~s~a~o (beyond those for the creation of the 247 residential parcels in the First Phase) until such time as it has entered into the Subsequent Agreement. 3. Developer and City have executed and recorded this instrument to give notice of the Agreement, and the respective rights and obligations of Developer and City. The unrecorded Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees in Lieu of Constructing Inclusionary Housing Units is incorporated by reference in its entirety in this Memorandum. 4. This Memorandum shall bind and inure to the benefit of the parties and their respective heirs, successors and assigns, subject however to restrictions set forth in the Agreement regarding assignment. 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 Dated: ~c~ ~~ O By: ~~ Richard C. Ambrose, ity ager Attest: -~ ~~~-~- (r~,v~,t~w~ ~ S;ofe ,City Clerk ~~.~'y DUBLIN RE INVESTORS, LLC By: Braddock and Logan Services, Inc. a California corporati n Its Manager: , )~~~ ~....p;~ ~~-c-t c_~ Dated: _ ~ L5 0 ~%~ ~~ gy-----... PP.C5~ o~-.r~ ** Applicant's Signature shall be notarized prior to returning signed agreement to the City of Dublin Community Development Department. a3~ ~~ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ~=0t.~~,Ar C~STfl On 5~~,5I o7 before me, t~A~cu E , ~f~,~.y , ~ tJ~"T>RR-l..! ~'t~/3~C , Date ` Name and Title of OFfice (.g., "Jane Doe, Notary Pu ic") personally appeared (~ personally known to me D (or proved to me on the basis of satisfactory evidence) to be the persons whose name() is/afe subscribed to the within instrument and acknowledged to me that PtANCy E. EMBREY he/sF~eRhey executed the same in his/~eNthetr authorized CO~"~Or' ~ T57~ capacity(+~S), and that by his/ger,~eir signatureEa') on the ~~ ~~ Inc ~ Carro~a ~ instrument the rson ty p Contra cosh county Pe (s); or the enti u on behalf of tNy Cornm. Expires hn a. 2009 which the person(' acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above Q.~ Sgnature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document ~t,., ,~. and could prevent fraudulent m and reattachment of this form to another d~~nQ~ r ' " "_`° ~, Description of Attached Doc,u`rment' r~`'~'Y`-p °~ /~ ~ I Title or Type of Document: ~d~L.X.u~ ~ ~ .~-e~C - C~ ~ !~o'~' T ~•,aC ~-.c`~t~ c}~~~ : ~~ ~~~ Document Date: Signer(s) Other Than Named Above: Capacity(fes) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Other: ^ AttOrney In Fact Top of thumb here ^ Trustee ^ Guardian or Conservator Signer Is Representing: Number of Pages: Signer's-Name: D Individual ^ Corporate Officer -Title(s): ^ Partner - D Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Top of thumb here ®2006 National Notary Association •9350 De Soto Ave., P.O. Box 2402'• Chatsworth. CA 91313-2402 ttem No. 5907 Reorder: Call Tdl-Free t-800-876-8827 aa~~a~" CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California 1t~.~41.'l~G~. ss. County of On J ~'rt ~ Z-'7, ZDO"7 before me, ~ Ytn ~ i>7G P Sp }vt N~ ~+~ ~v b (i L , - ~ Date Name and/rTi~t~Jle of Officer (e.g., "Jane Doe, Nota ublic") personally appeared ~t t:.~Q-YCf 1, . ~6'-/1bYOcae. Name(s) of Signer(s) Q"personally known to me f ~ot.a~ e soro S +~ 16913Zt t o ~ Narwcio MYCarwn. ~ ~ Z. ZOl ^ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and. that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument WITNESS y hand and fficial se,2~. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Top of thumb here Number of Pages: Signer's Name: ^ Individual ^ Corporate Officer -Title(s): _ ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Top of thumb here O 2004 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313.2402 Item No. 5907 Reorder. Call Tdl-Free 1-800-8766827 ~/ Braddock & Lofff..g//a~ ~ Properties at Fallon Villag VICINITY MAP . pctoyer•20pd H1~9•IOA i 7 ~ PLEASANTON W~-~ ~MMS +~~Am/ui14 N•4~.aM~.ti EX4~ IBiT A '~" NOIITN l17T TO iC'JLf a wra~wM nn.wc.wo MMM~o ....w.w n yasl - ras.a.o • i j _. ~~ ~% ~~'' ~~~-P~~ a3 q~a.5~ AMENDMENT NO. 1 TO AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. First Phase (247 Residential Lots) of the Fallon Village Project THIS FIRST AMENDMENT TO AFFORDABLE HOUSING AGREEMENT is hereby entered into this 17th day of June, 2008 by and between the City of Dublin ("the City") and Dublin RE Investors, L.L.C., a Califonaia limited liability company ("the Developer"). Recitals 1. City and Developer are parties to an Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units, dated June 5, 2007 ("the Agreement"), which agreement sets forth an alternate method of the Developer's compliance with the Inclusionary Zoning Regulations contained in Chapter 8.68 of the Dublin Municipal Code ("the Regulations") for the first 247 of the 1043 residential lots in the Project. 2. The Agreement refers to the initia1247 residential units in the Project as "the First Phase,'' and provides that Developer will satisfy its 31-Inclusionary unit obligation in the First Phase (a) by constructing (i) 13 integrated Inclusionary units (single-family homes) on 3,200 square foot lots, which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), and (ii) 13 l-bedroom, secondary dwelling units, which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"); (b) paying fees in lieu of construction for the remaining 5 unit obligation, which Developer has previously satisfied by paying $447,060 to City on January 30, 2008; (c) making a community benefit payment prior to issuance of each building permit equal to $958.77 (which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); (d) including rear yard landscaping and energy efficiency measures to reduce the homeowners' cost of living in the 13 integrated Inclusionary units; and (e) incorporating green building principles into the 26 Inclusionary units. 3. The Regulations provide that 50% of the Inclusionary units shall be allocated to moderate-income households, 20% to low-income households, and 30% to very low-income households, and, pursuant thereto, the 13 integrated units would be allocated as follows: 6 moderate-income units; 3 low-income units; and 4 very low-income units. 4. Because of concerns about the difficulty that very low-income purchasers would have in qualifying for financing and paying the high costs of owning single-family homes in the Project (including homeowners' association dues, geologic hazard abatement district assessments, landscaping and lighting assessments, landscape maintenance on the property, utilities, and long term maintenance}, Developer has proposed amending the Agreement to Amendment No. t Affordable Housing Agreement First Phase of Positano Project June 17, 2008 ATTACHMENT 8 a~9 ~a~~ replace the 4 very low-income integrated inclusionary units with 4 very low-income secondary units. 5. For the same reasons, the City is agreeable to the proposed amendment, and the City Council hereby finds that the alternate method of complying with the Regulations for the 247- unit First Phase of the Project meets the purposes of the Regulations. NOW, THEREFORE, Developer and City for themselves and their respective successors and assigns hereby agree as follows: Section 1. Amendment of Section 7 of the Agreement. Section 7 of the Agreement is amended to read as follows: "7. Unit Bedrooms and Size. The size of the Inclusionary Units shall be consistent with the Site Development Review approval of the Planning Commission, provided however, that minor changes to unit size maybe approved by the Community Development Director through a Site Development Review Waiver. The developer proposes to provide: A. 8 very low-income units (4feur bc~~~~T~a T r~,~,-z~g 1-bedroom Secondary Units); B. 61ow-income units (3 four-bedroom Integrated Units, and 3 one- bedroom Secondary Units); and C. 12 moderate-income units (6 four-bedroom Integrated Units, and 6 one-bedroom Secondary Units). The City hereby finds that, while this breakdown does not reflect the range of numbers of bedrooms provided in the First Phase as a whole, as required by Section 8.68.030.E of the Regulations, the Developer's alternate method of compliance meets the purposes of the Regulations." Section 2. Amendment of Exhibit 3 and Exhibit 4. Exhibit 3 and Exhibit 4 of the Agreement are hereby replaced with Exhibit A and Exhibit B to this Agreement. Section 3. All other provisions of the Agreement shall remain in effect. [EXECUTION PACE FOLLOWS) Amendment No. 1 Affordable Housing Agreement First Phase of Positano Project June 17. 2008 a~~ ~ asp 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 Dated: 6 ~ ~ By: Richard C. Ambrose, City ager Attest: -P~ City Clerk ~ v`'t'v Dated: w t7 b v DUBLIN RE INVESTORS, LLC By: Braddock and Logan Services, Inc. a California corporation By: ~ Its anager: {'. .l I 1103324.2 Amendment No. 1 Affordable Housing Agreement First Phase of Positano Project June 17, 2008 a ya ~a9 EXHIBIT A Revised Exhibit 3 to the Agcement ["Diagam of Location of Inclusionary Units in the First Phase of the Project"] a ~ a e ~~ ~ > `c E ,~ N o a rn [z, l~l ''-J v ~~~~ 7a ~ 3 F-~ v t~-~ r oo ~i o o W0..W ~ ~_ o0 0 ~~ W ~ M r'~ ~e nO `~ ~ ~ Q UxW ~' o ~ e~ ~ '~ ~ ~ .N. .~{. 00 ~ i N ~ t~.~ O «+ ,d c7 F+ y ~ ~ ~ ~ ~ _ ~ ~ 2 o ~ N N ~ ,y„ bAW ~ o o ~~M ~ o "°„^, CGS o ~ .k¢ ~ W a~ ~ . ~ ; ~ ~ , ~ ~ ~ o a Z b a~ ~ ~ W ~a A ~ , oho o ~a , , o a~ G '"a ~ o a.aa.a ~l'aawa, as ~i~~ Q ~ ~ 0.~iQc/] a / a o a ® ~ ~ o t v o ~o ~~ S~~ ~® ,~a ~~ No ~ a o ~ o N N ~~ k N ~ ~ ^ ~p Q N Oo ~ Mm e ® ~ ~ dF®® ~ M ~ N N ® * ®® * 'C~ ,~ N © ~ ~' °~. ~ ° ~~ * N® V o ~ p ~e ®~ * ~r~~~ o~ d ~ ~f~O~ ~ a ~~ h MQ 3~~~ ~~~OJ 1yJ ' -~ ~ S N O H MD ~© Pr f"~ O z ~~ 4 a ~tiv~a~ EXHIBIT B Revised Exhibit to the Agreement ["Preliminary Construction Schedule"] au~~a~ Positano First Phase Preliminary Construction Schedule MODELS fnea~hte~t.evef ~ ' 'Moderate ~: Low Ve Low. Sub-?>xotat BMR. 'Merkel, ~ - Totat~~ Net htiortfod A , . 4 4 N" ~hbaodB' ~' ~'~ 4 4 0 0 0 0 8 8 PHASE ONE t[1CO~E:e~~et. < ~' ~ ~~; Mo~~rate s Love. Ve Laws Sub-Total Bti~tR .~Markefw- :Total Mai~'t~atd 'Nei hbofiood A 13 13 MarkatRi~ = Nei' hborftood B ''' 11 11 :B~~robtrrBMR `,: ,. " 1 1 0 2 2 .. ~iDncfa'~ ~~ ln~ ~~~ 1 2 4 7 7 ota,~ .~ ..._ a~ . ~, 2 3 4 9 24 33 Pero~tal ~~of P ase=Emits ~ ~ ~> ° 6% 9% 12°/a 27°~ 73°~ 100% PHASE TWO tncame Levehs ~,: ~"' ~ ~-~- _ Moderate LoNr ' Ve ~ Lovv `Sub-Totat'flMR ~_~Market Total MaHcet Rate =~Nei ' hborhood A 14 14 MarJet~Rate=.Net `i~barhaad B 12 12 Be~tl~ ~'~ BM12 ..: ;~, ~ 3 1 0 4 4 ~ol~ ~`-~tiit'•"~ -~ 2 0 3 5~ ~ 5 ,tat: "_.~~ ~ ~ . - - ~~ ' 5 1 3 9 26 35 P`ercae#a eof`Phase Units 14% 3% 9% 26% 74% 100% PHASE THREE " ~, _`tu d~tai..; ~~ ~- Moderate ::~ Cow ~ ~ Ve Low Sub-Total B ' 1111R -Market ~ _ Total `, M'a[fcet; . ~t8b~ ~ 'ei hborhaod A 16 16 Mark~t~t~ °'. .ei hborttood B 12 12 ~t3ecti~BMt'i`~~r~ `~ 2 1 0 3 3 ~`~ dh ~ aJ-ttit= ~ ~~'' ~ 3 1 1 5 5 o t o ~~.~ ~; -- -~ jz= 5 2 1 8 28 36 PeJ~anta a 0~ Plisse Units ~ ' 14% 6% 3% 22% 78% 100% PHASE FOUR tip ` _. 8~~ehf~t ~ ~ ~ . ~b;~- - - . -~ ~ ~ Moderate °° Low-~ Ve Low Sub-Tctat BMR All'arket Total: Market Rate',;-,Nei hborhood B 12 12 PHASE FIVE [noome Ce ° l ~ `- ;. ,~: Moderate Low` Ve Low Sub-Tota1,BMR Market Total Al~Irtcet Rate.- Nel hborhaod B 12 12 PHASE SIX tnbotite, f_evEf Moderate -Low Ve Low ...Sub-Total BMR .`Market Total...' Mark.°"et Rate -Nei hborhood B 10 10 PHASE SEVEN Income-t:e~ret ~ -- ~~ ~ ~- Mo~daiate ~ Low - Ve Low '.Sub-Total BI~IR ~ Ma`rket ~ Totah ~'` Market Rate- Nei hborhaod B 12 12 Exhibit B a~6~~~ PHASE EIGHT frfcoma LeveE- ,.- .., .. Mode~ate_ ~~ ~. , r:ow - Ve'. Low Sab-Total B~ltR~ ~ ~I~larket ~` ' Total' Market'Rate -Nei f~borhaod B g g PHASE NINE [nc~me L'sYe~ , ~ ...: .~-, ~. ~ . ~ Moderate :~ ~ Low : Ve Low Sub-Total BMA ~ M~Skef . ~ Total Market R~Cr~ = Nei hbio[hooct B _ 14 i4 PHASE TEN Incams Level , ,. :.-~. ~° Moderate ~.. Low~~~. Ve .LOw Sub=Total ~M4~ ai~ket ~ ~,Total Mairket,Rate~= Nei hborFtood`B -~~~ ~ 13 13 PHASE ELEVEN Incam`e L'e~[eE .. - : - ~ Moderate - . Lginr Ve Low Sub-Total BMR •~.;MarKet °~ Tof~l: Market Rate__- Nel hbo~rhaoct B °° g 8 PHASE TWELVE af Moderate n Low ue Low -_Sub-Total BN1R ~ Market - _ Total Market R°ate Nel hborhood,B 10 10 PHASE THIRTEEN Income ~eWet : '-~.'.. ~:~ Moderate Low Ve Low; Sub-TotakBMR~ :Maiket Total-' Marl~et ktate~-:Nei hbo~-bod B ' ~° 11 11 PHASE FOURTEEN Incotn~Leitel_~~~ ~ . ,,:b Moderate ~ Lowe; VeryLow Sub-TotaiBNIR ~~M~rket~ Tnrai 12 ~ 12 LIN LOTS Inco(rrt~L~~tel ~ Moderate "Low ~ ~ Ve ".`Low Sub-Total BMR ;Market ,Total Mert~e~R2ite=Ne hborhood B '- 12 12 a~~ a~ RESOLUTION NO. 08 -26 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN RE INVESTORS LLC FOR THE NORTHERN 7-ACRES OF THE ANDERSON PROPERTY (APN 905-0006-001) PA 07-037 WHEREAS, the Applicant, Dublin RE Investors LLC, has requested approval of a Development Agreement for the northern 7-acres of the Anderson property with a residential land use designation and generally located north of Interstate 580 and east of Croak Road near the eastern City limits and included within the Eastern Dublin Specific Plan and Fallon Village; and WHEREAS, Braddock & Logan's Affordable Housing proposal to address the Inclusionary Zoning requirements for the Positano development includes 88 affordable units on the Anderson property; and WHEREAS, the City Council directed Staff to work with Braddock & Logan to implement their Affordable Housing proposal; and WHEREAS, on February 12, 2008, the Planning Commission approved a Site Development Review (Resolution 08-04) to construct a 108-unit apartment project on the northern 7-acres of the Anderson property; and WHEREAS, on March 4, 2008, the City Council approved a General Plan Amendment (Resolution 37-08) to change the land use designation of the northern 7-acres of the Anderson property from Medium Density (6.1-14 du/acre) to Medium-High Density (14.1-25 du/acre); and WHEREAS, on March 18, 2008, the City Council approved a PD-Planned Development Rezone with Stage 2 Development Plan (Ordinance 13-08) for the northern 7-acres of the Anderson property; and WHEREAS, Development Agreements are required as an implementing measure of the Eastern Dublin Specific Plan; and WHEREAS, the Development Agreement would extend the term of the Site Development Review approval for a period of 5 years; and WHEREAS, pursuant to CEQA, Staff prepared an Initial Study to determine whether. there could be significant environmental impacts occurring as a result of the residential project on the northern 7-acres of the Anderson property beyond or different from those already addressed in a previous environmental review; and WHEREAS, the Initial Study concluded that the proposed project could not have a significant effect on the environment, and no significant information arose for the project during the preparation of this Initial Study that would require further environmental review; and Attachment 9 au8 ~d~ WHEREAS, on March 4, 2008, the City Council adopted a CEQA Addendum, and Statement of Overriding Considerations (Resolution 36-08), to prior environmental documentation including: 1) the Eastern Dublin Environmental Impact Report (EIR), a program EIR, initially certified by the City Council on May 10, 1993 (Resolution 53-93) (SCH#91103064); 2) the East Dublin Property Owners Supplement EIR (SEIR) (SCH # 2001052114) certified by the City Council on April 2, 2002 (Resolution 40-02); and 3) the Fallon Village SEIR (SCH #2005062010) certified by the City Council on December 6, 2005 (Resolution No. 222-OS); and WHEREAS, the text of the Draft Development Agreement is attached to this resolution along with the draft Ordinance marked as Exhibit A; and WHEREAS, the Planning Commission held a properly noticed public hearing on October 14, 2008, at which time interested parties had the opportunity to be heard; and WHEREAS, a Staff Report dated October 14, 2008 was submitted to the Planning Commission analyzing the Project and recommending the Planning Commission recommend that the City Council adopt an Ordinance approving the Development Agreement; and WHEREAS, the Planning Commission did hear and consider all said reports, recommendations and testimony herein above set forth and used its independent judgment to evaluate the project. NOW, THEREFORE, BE IT RESOLVED THAT the Dublin Planning Commission does hereby make the following findings and determinations regarding said proposed Development Agreement: Said Agreement is consistent with the objectives, policies, general land uses and programs specified in the General Plan and the Eastern Dublin Specific Plan in that: a) the General Plan and the Eastern Dublin Specific Plan land use designation for the subject site is Medium-High Density Residential and that the Applicant's project is consistent with that designation; b) the project is consistent with the fiscal policies in relation to provision of infrastructure and public services of the City's Eastern Dublin Specific Plan/General Plan; c) the Agreement sets forth the rules the Applicant and City will be governed by during the development process which is required by the Eastern Dublin Specific Plan and the Mitigation Monitoring Program of the Eastern Dublin Specific Plan. 2. Said Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located in that the project approvals for PA 07-037 include Planned Development zoning, Stage 2 Development Plan, and Site Development Review. 3. Said Agreement is in conformity with public convenience, general welfare and good land use practice in that the Applicant's project will implement land use guidelines set forth in the Eastern Dublin Specific Plan/General Plan, as proposed. 4. Said Agreement will not be detrimental to the health, safety and general welfare in that the development will proceed in .accordance with the Agreement and any Conditions of Approval for the Project. G:\PA#\2007\07-037 Anderson GPA SPA PD SDR\Development Agreement\PC Reso Anderson DA.doc Page 2 of 3 ~~~ a~~ 5. Said Agreement will not adversely affect the orderly development of the property ore preservation of property values in that the development will be consistent with the City of Dublin General Plan and Eastern Dublin Specific Plan. NOW, THEREFORE, BE IT FURTHER RESOLVED THAT the Dublin Planning Commission does hereby recommend that the City Council approve the Development Agreement between the City of Dublin and Dublin RE Investors LLC for the northern 7-acres of the Anderson property. PASSED, APPROVED AND ADOPTED this 14th day of October 2008. AYES: Schaub, Wehrenberg, Biddle, and King NOES: ABSENT: ABSTAIN: Tomlinson Planning Commission Chairperson ATTEST: Planning Manager G:\PA#\2007\07-037 Anderson GPA SPA PD SDR\Development Agreement\PC Reso Anderson DA.doc Page 3 of 3 DRAFT rrDRAFT 8.2 P 7-019 The Green on Park Place (Legislative) Development Agreement. ~jb Kristi Bascom, Consulting Planner presented the project as stated in the Staff Report. ~ i; Chair Schaub opened~e public hearing and hearing no commentseYosed the public hearing. ,, ~~` On a motion by Cm. Weli~enberg and seconded by C .Tomlinson, on a vote of 5-0, the Planning Commission. approvedahe following: LUTION NO. 08 - 25 A RESOLUTION ~~IE PLANNING COMMISSION HE CLTY OF DUBLIN RECOMMENDING TI~CITY COUNCIL ADOPT AN ORDINANCE APPROVING A DEVELOPME AGREEMENT BETWE~hI THE CITY OF DUBLIN AND STOC DGE/BHV EMERALD PLACE LAND COMPANY FOR T GREEN ON PARK PLACE RETAIL CENTER PROJECT APNS 986-0033-002 AND 986-0033003 PA 07-019 8.3 PA 07-037 Anderson (Legislative) Development Agreement. Jeff Baker, Senior Planner presented the project as stated in the Staff Report. Chair Schaub opened the public hearing and hearing no comments closed the public hearing. On a motion by Cm. Biddle and seconded by Cm. Wehrenberg, on a vote of 4-0-1, with Cm. Tomlinson abstaining from the vote, the Planning Commission approved the following: RESOLUTION N0.08 -26 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN RE INVESTORS LLC FOR THE NORTHERN 7-ACRES OF THE ANDERSON PROPERTY (APN 905-0006-001) PA 07-037 114 Attachment 10