HomeMy WebLinkAboutItem 8.2 Positano Anderson Afford HouseG~~~ OF DpB~
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i9'~;~'8~ STAFF REPORT C I T Y C L E R K
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DATE: August 17, 2010
TO: Honorable Mayor and City Councilmembers
FROM: Joni Pattillo, City Manager
SUBJE . Positano/Anderson Affordable Housing Agreement PA 05-038 Seventh
Amendment to the Affordable Housing Agreement for the First Phase of Positano
and Amended and Restated Subsequent Affordable Housing Agreement for the
remainder of the Positano Development
Prepared By: John Bakker, City Attorney and Jeri Ram, Community Development Director
EXECUTIVE SUMMARY:
The City has entered into finro agreements with Braddock and Logan entities that describe how
the Developer will satisfy its affordable housing obligations for the Positano project. Those
agreements provide that the Braddock and Logan entities will among other things: (a) construct
a total of 130 inclusionary units (made up of 11 integrated and 41 second units in the project
area and a 78-unit offsite project) and (b) pay a$1,000,000 community benefit payment in
equal installments ($958.77 for each of the 1,043 units) with each building permit. Developer
has determined that the offsite project is infeasible. Accordingly, Braddock & Logan have
developed a revised proposal to satisfy its obligation by: (a) constructing a total of 94
inclusionary units (made up of 2 integrated units and 92 second units within the project area);
(b) paying a fee (in three installments) of $1,938,760 in-lieu of construction of inclusionary units;
and (c) paying a$1,000,000 community benefit payment in equal installments at building
permit. The proposed amended agreements would implement the proposal.
FINANCIAL IMPACT:
The costs to administer these Affordable Housing Agreements are included in the
administration fees that are charged with the sale of each affordable unit and the annual
monitoring o# rental projects.
RECOMMENDATION:
Staff recommends that the City Council: 1) Receive Staff presentation; 2) Receive comments
from the public; and 3) Take the following actions: a) Adopt the Resolution approving
Amendment No. 7 to the Affordable Housing Agreement for the First Phase of Positano; and b)
Adopt the Resolution approving the Amended and Restated Subsequent Phase Affordable
Housing Agree , nt. ~
ubmitted By: Revie ed
Community Development airector Assistant City Manager
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DESCRIPTION:
Background
Braddock & Logan's Positano development is a
residential development consisting of 1,043 single-
family homes on a 488-acre project site. The project
site is located within the northern portion of the larger
Fallon Village project area, east of Fallon Road and
the Dublin Ranch development, west and southwest
of the City Limits boundary with Alameda County and
Doolan Canyon (see Map 1 to the right). Construction
of the homes in the first phase is currently underway.
Affordable Housing Agreement Map l: Positano Vicinity Map
Inclusionary Zoning Regulations
The Inclusionary Zoning Regulations of the City of Dublin Zoning Ordinance (Chapter 8.68)
contains affordable housing requirements for all new developments of 20 or more units.
Residential developments consisting of 20 or more units are required to provide 12.5% of the
units as affordable to households with very-low, low, and moderate income levels as
determined by the California Department of Housing and Community Development for Alameda
County. These affordable units are required to be constructed on-site and integrated with the
market rate units. The affordable units are required to be evenly distributed throughout the
project, include a range of bedrooms consistent with the overall project, and be
indistinguishable in exterior appearance from the market rate units. The Inclusionary Zoning
Regulations also~ provide the City Council with the ability to make exceptions to the regulations
contained in the Inclusionary Zoning Ordinance, including alternate methods of compliance with
the Inclusionary Zoning Regulations such as the development of off-site affordable units.
In accordance with the Inclusionary Zoning Regulations, the Positano development has a
requirement to provide 130 affordable units.
Table 1: Positano Inclusionary Zoning Requirements
Total
Units Inclusionary
Re uirement Inclusionary
Units
1,043 12.5% 130
Of this, 40% of the obligation (or 52 units) can be satisfied through the payment of an in-lieu
fee, which is due at first building permit. Currently, the in-lieu fee is $102,151 per unit, which
would equate to $5,311,852 for 52 u~its.
The Braddock and Logan Affordab/e Housing Obligations Under the Existing Agreements
Braddock and Logan proposed an alternative means of compliance, and the City and Braddock
and Logan negotiated two agreements that set out those alternate methods of compliance. The
first agreement, known as the First Phase Affordable Housing Agreement, sets out the
obligations as to the initial 416 lots in the project. The second agreement, known as the
Subsequent Phase Affordable Housing Agreement, sets out the obligations as to the 627 lots in
the remainder of the project. The First Phase Agreement has been amended six times. The
first four amendments were considered significant Amendments and were approved by the City
Council. Amendments 5 and 6 were minor, involving changing the location of the Inclusionary
units and were approved by Staff. The history of the significant Amendments (Amendments 1-
Page 2 of 5
4) and Braddock and Logan's original affordable housing proposal are detailed in the June 16,
2009 and October 20, 2009 staff reports (attached hereto as Attachment 1.) The Subsequent
Agreement was amended by Staff on March 25, 2010 to modify the boundary of the subsequent
area to be consistent with the Amendments to the First Phase Agreement. The various
amendments sinee June 2009 have involved minor changes to the unit location or to
geographic boundaries to accommodate pending development.
Table 2 summarizes the manner in which Braddock and Logan is currently obligated to satisfy
the Inclusionary Zoning Regulations under the two agreements as amended. The requirements
include a combination of on-site integrated units and secondary units, off-site apartments on the
Anderson property, and a$1,000,000 Community Benefit Payment.
Tabfe 2: Existin Affordable Iiousin unit Nroauct~on upi i ations
Unit T e
yp Ownershi
~
Size of Affordability
or Rental Income Level
Units period
11 Single-family
For sale moderate (10 units) 4 bedroom In er etuit
p p y
detached Units ~ow 1 units units
21 Secondary Units Rental very low (21 units) Studios In perpetuity
Studios
20 Secondary Units
Rental low (7 units) 1 bedroom/
~n perpetuity
1 bedroom ve low 13 units 1 bath
moderate (39 units) 2 bedroom/
78 Apartments* Rental low (16 units) 2 bath ~n perpetuity
ve low 23 units
130 Total Units
* Plus 4 units to satisfy the InGusionary Zoning requirements for the Anderson property.
Revised Proposal
Braddock and Logan has determined and Staff concurs that the 78-unit offsite project is
infeasible. In light of this, the Subsequent Agreement must be amended to establish some
other means of compliance with the Inclusionary Zoning Regulations. Accordingly, Braddock
and Logan has proposed a revised "alternate method" proposal to satisfy its obligations. The
proposal includes a combination of housing unit construction (94 units), fees in-lieu of
construction ($1,938,760), and the $1,000,000 community benefit payment. Table 3 provides a
summary of the Applicant's current affordable housing proposal to address the Inclusionary
Zoning obligation for the entire Positano project.
Table 3: Pronosed Affordable Housina Unit Production Obligations
Unit T e
yp Ownershi
P
Size of Afifordability
or Renta/?
Income Level
Units period
2 Single-family For sale moderate (1 unit) 4 bedroom In perpetuity
Detached Units low 1 units units
21 Secondary Units Rental very low (21 units) Studios In perpetuity
Studios
71 Secondary Units
Rental low (70 units) 1 bedroom/
~n perpetuity
1 bedroom ve low 1 unit 1 bath
94 Total Units
Page 3 of 5
To satisfy the obligations in excess of 94 units, Braddock and Logan has proposed, in addition
to the $1,000,000 community benefit payment, to pay a fee in-lieu of construction of $1,938,760
in three installments the last of which is 36 months after the agreement's effective date. At the
current rate of $102,151 per unit, this payment equates to approximately 19 units. In total, the
construction of 94 units and the in-lieu fee payment satisfy the obligation as to 113 of the 130
units required.
Braddock and Logan justifies this proposed 17-unit deviation from the terms of the Inclusionary
Zoning Ordinance on the grounds that: (1) the 94 inclusionary units it proposes to construct
exceed its 78-unit must-build obligation under the Regulations by 16 units; (2) the proposal
includes deeper affordability than required under the Regulations (71 low-income units versus
the 16 required); (3} the replacement of the integrated and moderate income units with very low
and low income rental second units reflects the current state of the real estate market in which
more market-rate homes are affordable to moderate income purchasers; (4) the in-lieu fee
payments will be made earlier than otherwise required by the Inclusionary Zoning Regulations;
and (5) the units will be affordable in perpetuity rather than the 55 year period required by the
Regulations. In addition, the substantially increased number of low-income units will assist the
City in meeting its Regional Housing Needs Allocation obligations. Based on these
justifications, Staff believes that the City Council could find that Braddock and Logan's alternate
method of complying with the Regulations meets the purposes of the Regulations.
The proposed amendments to the First Phase Agreement and the Subsequent Agreement,
attached as Exhibit A to, respectively, Attachment 2 and Attachment 3 would implement
Braddock and Logan's revised proposal.
The First Phase Agreement is substantially similar to the existing agreement, excepting various
changes made to it to change the unit mix in conjunction with the revised proposal. In
particular, nine integrated four bedroom moderate income units have been replaced with 10
low-income, one-bedroom second units, and 12 very low-income, 1 bedroom second units have
been converted from very low- to low-income units. Additional non-substantive changes were
made to the agreement to eliminate the no-longer-necessary distinction between Parts One and
Two of the First Phase and to combine the exhibit showing the location of the affordable units
(Exhibit 3) onto a single page.
The Amended and Restated Subsequent Agreement involves more substantial changes, and it
has therefore been completely restated. The changes, however, are modest. In particular, the
revised agreement eliminates the requirement to complete the 78-unit Anderson project and
replaces it with the requirement to construct 41 1-bedroom, low-income, Second Units (see
sect. 3.b) and the requirement to pay the $1,938,760 in-lieu fee discussed above (see above).
As the Developer's plans may change in the future, as they have in the course of the First
Phase, the revised Subsequent Agreement would allow the Community Development Director
to approve changes to the location diagram, provided that those changes are consistent with
the requirement that the units are "reasonably dispersed." In substance, al! other aspects of the
agreement remain the same.
ATTACHMENTS: 1. City Council Staff Reports, dated June 16, 2009 and October
20, 2009, without attachments.
2. Resolution Approving Amendment No. 7 to the Affordable
Housing Agreement for First Phase (416 Units) of Positano to
Modify the Location of the Inclusionary Units Within Part One of
Page 4 of 5
the First Phase of the Project (PA 05-038 and PA 07-005) [with
the amendment attached as Exhibit A]
3. Resolution approving an Amended and Restated Subsequent
Phase Affordable Housing Agreement between the City of
Dublin and Dublin RE Investors, LLC [with Agreement attached
as Exhibit A]
Page 5 of 5
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G~~~~~DU~~f~ CITY CLERK
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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: June 16, 2009
SUBJECT: Positano Affordable Housing Agreement - Amendment No. 3 to the
Affordable Housing Agreement for the First Phase of Positano.
Report Prepared by Jeff Baker, Acting Planning Manager
ATTACHMENTS: 1) City Council Staff Report dated October 18, 2005, with attachments.
2) City Council Meeting Minutes dated October 18, 2005.
3) Affordable Housing Agreement for the First Phase of Positano.
4) Amendment No. 1 to the Affordable Housing Agreement for the First
Phase of Positano.
5) Amendment No. 2 to the Affordable Housing Agreement for the First
Phase of Positano.
6) Subsequent Phase Affordable Housing Agreement.
7) Resolution approving Amendment No. 3 to the Affordable Housing
Agreement for the First Phase (416 units) of Positano to modify the
unit mix and income affordability level of the Inclusionary units and
authorizing the City Manager to execute the Amendment, with the
Amendment attached as Exhibit A.
RECOMMENDATION: 1) Receive Staff presentation;
(~, ,~,[~~~ 2) Take testimony from the Applicant and the public;
`(/~ l~ 4 3) Deliberate; and
4) Adopt the Resolution approving Amendment No. 3 to the Affordable
Housing Agreement for the First Phase (416 units) of Positano to
modify the unit mix and income affordability level of the Inclusionary
units and authorizing the City Manager to execute the Amendment.
FINANCIAL STATEMENT:
The costs to administer these Affordable Housing Agreements are
included in the administration fees that are charged with the sale of
each affordable unit.
DESCRIPTION:
Background
Braddock & Logan's Positano development is a residential
development consisting of 1,043 single-family homes on
approximately 488-acres. The project site is located within the
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Map 1: Positano Vicini ,ty Map
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COPY TO: Jeff Lawrence, Braddock & Logan
File PA OS-038
Page 1 of 6
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northern portion of the larger Fallon Village project area, east of Falion Road and the Dublin Ranch
development, west and southwest of the City Limits boundary with Alameda County and Doolan Canyon
(see Map 1 above). Braddock & Logan has received approval of Site Development Review (SDR) to
construct the first phase of the development consisting of 247 homes in the Salerno and Cantara
neighborhoods. Construction of the homes in the first phase is currently underway.
Affordable Housing Agreement
Inclusionary Zoning Regulations
The Inclusionary Zoning Regulations of the City of Dublin Zoning Ordinance (Chapter 8.68) contains
affordable housing requirements for all new developments of 20 or more units. Residential developments
consisting of 20 or more units are required to provide 12.5% of the units as affordable to households with
very-low, low, and moderate income levels as determined by the California Department of Housing and
Community Development for Alameda County. These affordable units are required to be constructed on-
site and integrated with the market rate units. The affordable units are required to be evenly distributed
throughout the project, include a range of bedrooms consistent with the overall project, and be
indistinguishable in exterior appearance from the market rate units. The Inclusionary Zoning Regulations
also provide the City Council with the ability to make exceptions to the regulations contained in the
Inclusionary Zoning Ordinance, including altemative methods of compliance with the Inclusionary Zoning
Regulations such as the development of off-site affordable units. In the case of the Positano development,
the City Council has granted exceptions to the method of compliance with the Inclusionary Zoning
Ordinance as discussed below.
Affordable Housing Proposal
In accordance with the Inclusionary Zoning Regulations, the Positano development has a requirement to
provide 130 affordable units.
Table 1: Positano Inclusionarv Zonine Reauirements
Total
Units Inclusionary
Re uirement Inclusionary
Units
1,043 12.5% 130
Braddock & Logan prepared an affordable housing proposal to address the affordable obligation for the
Positano development which was reviewed by the City Council on October 18, 2005 (Attachment 1). The
2005 affordable housing proposal included a combination of on-site integrated units, secondary units, off-
site apartments on the Anderson property, and a$1,000,000 Community Benefit Payment on a per unit
basis (i.e. $958.77 per unit) prior to issuance of each building permit in Positano. The City Council
reviewed the proposal and directed Staff to work with Braddock & Logan to refine the proposal
(Attachment 2) to include: 1) rear yard landscaping, energy efficient measures, and green building
principles into affordable units; 2) study feasibility of integrating market rate units into the proposed off-
site affordable apartment project; and 3) address the timing and security necessary to ensure completion of
the off-site apartments.
Staff worked with Braddock & Logan to prepare an Affordable Housing Agreement (AHA) to address the
direction from the City Council. As requested by the Applicant, the affordable requirement is addressed
through a phased approach and consists of a First Phase AHA and a Subsequent Phase AHA as described
below. Please refer to Map 2(below) for the location of the various phases of the Affordable Housing
Agreements. This phased approach allowed Braddock & Logan to proceed with the initial phases of
development while the terms of the AHA were finalized for the remaining portions of Positano.
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Map 2: Affordable Housing Agreement Phases of Positano
First Phase Affordable Housing Agreement.• The First Phase consists of 416 lots and is broken down into
two parts. Part One consists of 247 lots in the Salerno and Cantara neighborhoods. Part Two consists of
the remaining 169 lots within the First Phase. Please refer to Map 2(above) for the location of the Part
One and Two of the First Phase AHA. The First Phase AHA was approved by the City Council on June 5,
2007 (Attachment 3). Since that time, two Amendments have been approved which modified the unit mix
and affordability of the Inclusionary Units. Amendment No. 1 was approved on June 17, 2008
(Attachment 4) and Amendment No. 2 was approved on November 4, 2008 (Attachment 5). Braddock &
Logan is currently requesting approval of Amendment No. 3 to this Agreement as discussed below.
Subsequent Phase Affordable Housing Agreement.• This
Agreement addresses the inclusionary requirements for the
remaining 627 lots in Positano (Attachment 6). This
Agreement consists of two phases, a Subsequent Phase and a
Final Phase. Please refer to Map 2(above) for the location of
the Subsequent and Final Phases. The developer will satisfy
the inclusionary zoning requirements for the 627 lots by
constructing 78 off-site affordable apartments (2 bedroom/2
bathroom units) on the Andcrson property. The Anderson
property is generally located north of Interstate 580 and east of
Croak Road near the eastern City limits in Fallon Village (see
Map 3 to the right).
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Map 3: Anderson Vicinity Map
Table 2 below illustrates the unit mix and affordability level under the current Affordable Housing
Agreement for Positano (First Phase Agreement Amendment No. 2 and Subsequent Phase Agreement).
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Table 2: Approved Affordable Housing Unit Mix
Unit Type Ownership
Income Level
Size of Units Affordability
/Rental period
18 Single-family For sale % moderate (15 units)
g3 4 bedroom units In perpetuity
detached Units o
17 /o low (3 units)
34 Secondary Units
Rental 26% low (9 units) 1 bedroom/
In perpetuity
74% very low (25 units) 1 bath
50% moderate (39 units) 2 bedroom/
78 Apartments* Rental 20% low (16 units)
2 bath In perpetuity
30% very low (23 units)
130 Total Units
* Plus 4 units to satisfy the Inclusionary Zoning requirements for the Anderson property.
Current Request
Braddock & Logan is cunently requesting approval of Amendment No. 3 to the First Phase Affordable
Housing Agreement for Positano (Attachment 7) to modify the unit mix and income affordability of the
Inclusionary units as discussed below.
ANALYSIS:
Part One of the First Phase AHA includes a total of 247 lots within rivo neighborhoods (Cantara and
Salerno). These 247 lots generate an inclusionary zoning requirement to provide 31 affordable units. Part
Two includes a total of 169 lots. These lots generate an Inclusionary Zoning Requirement to provide 21
affordable units (please refer to Table 3 below}.
Tahle 3: First Phase Inclusionarv Reauirement (Part Onel
Phase of AHA
Total Units Inclusionary
Re uirement
Inclusiona Units
Part One 247 12.5% 31
Part Two 169 12.5% 21
Revised Unit Mix
Under the Agreement, as previously amended, Braddock & Logan would satisfy this requirement in Part
One by constructing 26 affordable units and paying fees in-lieu of constructing the 5 additional units in
this phase (please refer to Table 4 below) and in Part Two by constructing 26 affordable units (please refer
to Table 5 below). Under the terms of the Agreement, the in-lieu fee would be refunded at the point at
which the location of the Inclusionary units in Part Two were approved by the City.
Braddock & Logan proposes to construct 31 affordable units in the Part One of the First Phase, rather than
26 units, which will avoid the necessity of paying the in-lieu fee for the additional 5-unit obligation. It
would also result in 5 fewer affordable units being constructed in Part Two of the First Phase. In addition,
Braddock and Logan proposes to modify the unit mix and affordability of the affordable units in Parts One
and Two. Under the current proposal Braddock & Logan would introduce a new secondary unit size -
275 square foot secondary units as studio units (rather than 437 square foot one bedroom units). The
Studio and one bedroom secondary units are attached the primary residence. The proposal would: 1)
eliminate seven of the 4 bedroom detached homes affordable to low and moderate income households; 2}
eliminate nine of the 1 bedroom secondary units affordable to very-low and low income households; and
3) add twenty-one studio secondary units affordable to very-low income households (Attachment 7). The
Applicant would continue to pay a prorated portion of the $1,000,000 Community Benefit Payment prior
to issuance of each building permit. Tables 4 and 5 below provide a comparison of the existing and
proposed unit mix and affordability level in, respectively, Parts One and Two of the First Phase.
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Table 4: ExistinQ and Proposed Affordable Unit Mix for Part One of Expanded First Phase
Elcistin A ffordable Unit Mix Pro osed Affordable Unit Mix
Unit T e Income Level Unit T e Income Level
9 Single-family 67% moderate (6 units) 2 Single-family 50% moderate (1 unit)
detached Units 33% ]ow (3 units) detached Units 50% low (1 unit}
17 One Bedroom 47% low (9 units) 8 One Bedroom 88% low (7 units)
Seconda Units 53% very low (8 units) Secondary Units 12% very low (1 unit)
0 Studio 21 Studio
100°/o very low (21 units)
Secondary Units Secondary Units
Total: 26 units* -- Total: 31 Units --
*Plus Inclusionary Zoning In-lieu fee for five units.
Table 5: Existin~ and Proposed Affordable Unit Mix for Part Two of Expanded First Phase
Existin A ffordable Unit Mix Pro osed Affordable Unit Mix
Unit T e Income Level Unit T e Income Level
9 Single-family 100% moderate (9 units) 9 Single-family 100% moderate (9 unit)
detached Units detached Units
17 One Bedroom 100% very low (17 units) 12 One Bedroom 100% very low (12 units)
Secondary Units Secondary Units
0 Studio 12 Studio
Seconda Units Secondary Units
Total: 26 units* -- Total: 21 Units --
The Applicant has indicated that in the current economic climate it is not feasible to sell the 4-bedroom
homes to very-low-, low-, and moderate-income households. The Applicant has indicated that currently
the price of these homes is not competitive with homes that are available on the resale market. The
Applicant believes that the proposed Amendment to provide studio secondary rental units available to
very-low income households satisfies the intent of the Inclusionary Zoning requirements and is better
suited for the current market. The proposed change also results in "deeper" affordability in that the total
number of very low income units has increased from 25 to 34 and the number of moderate-income units
has decreased from 15 to 10, and the number of low-income units has decreased from 12 to 8. However,
because the 275 square foot studios will replace the 437 square foot one bedroom units, the secondary
units would generally be smaller than the units produced under the current agreement.
Rear Yard Lundscuping
The City Council directed Staff to work with Braddock & Logan to provide rear yard landscaping for the
affordable single-family detached units. The First Phase AHA (Attachment 3- AHA Section 6.C, Page 5)
requires the Developer to provide rear yard landscaping for all of the detached affordable units as directed
by the City Council (including turf, shrubs, trees, irrigation, and a usable rear yard area). The Developer
is required to submit conceptual rear yard Landscape Plans for review as part of the SDR application for
the design of the homes.
Energy Efficiency and Green Building Principles
The First Phase AHA (Attachment 3- AHA Section 6.D, Page 5) also obligates the developer to
incorporate energy efficient measures and green building practices for all of the affordable detached units
and secondary units. Braddock & Logan also submitted a"Single-Family GreenPoint Checklist" that
identifies the energy efficiency and green building measures that will be incorporated into the affordable
units. This checklist was incorporated into the First Phase AHA (Attachment 3, Exhibit 5), and the
Agreement required that each unit obtain 50 points on the checklist. The amendment would require that
each unit obtain 52 points on the checklist.
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Subsequent Phase Affordable Housing Agreement
As previously discussed, Braddock & Logan proposed to satisfy a portion of the affordable housing
obligation through the construction of 78 off-site affordable apartments on the Anderson property. The
Subsequent Agreement prevents development of the last 539 residential lots in the 1,043-unit project until
either the Anderson Project is under construction or the Subsequent Agreement is amended. Braddock &
Logan no longer controls the Anderson property. Therefore, it is likely that in the future the Applicant
will request an Amendment to the Subsequent Phase Affordable Housing Agreement to address the
affordable obligation through an alternative to creation of inclusionary units on the Anderson property.
CONCLUSION:
Braddock & Logan is requesting approval of Amendment No. 3 to the First Phase Affordable Housing
Agreement for Positano to modify the unit mix and income affordability of the Inclusionary units
(Attachment 7). Because the secondary units (i.e. studio and 1 bedroom units) and the affordable single-
family detached units are not strictly consistent with the requirements in the Inclusionary Zoning
Ordinance that states the affordable units should "be allocated to households with very-low, low, and
moderate income levels" as defined in the Ordinance, and should "reflect the range of numbers of
bedrooms provided in the project as a whole" and because the secondary units do not satisfy the
requirement that the units "not be distinguished by exterior design, construction, or materials," the City
Council must find that Braddock & Logan's alternate proposal meets the purposes of the Inclusionary
Zoning Ordinance. Staff believes this finding can be made based on the affordability characteristics of 4
bedroom homes and the secondary units, the fact that the units will be affordable in perpetuity and the
Developer's commitment to provide fully landscaped rear yards and energy efficiency measures which
reduce housing costs.
RECOMMENDATION:
Staff recommends that the City Council: 1) Receive Staff presentation; 2) Take testimony from the
Applicant and the public; 3) Deliberate; and 4) Adopt the Resolution approving Amendment No. 3 to the
Affordable Housing Agreement for the First Phase (416 units) of Positano to modify the unit mix and
income affordability level of the Inclusionary units and authorizing the City Manager to execute the
Amendment.
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STAFF REPORT
DUBLIN CITY COUNCIL
CITY CLERK
Fi~e # 0~~~l1-~f~]
DATE: October 20, 20Q9
TO: Honorable Mayor and City Councilmembers
_ ~
FROM: Joni Pattillo, City Manager
SUBJECT: Positano Affordable Housing Agreement - Amendment No. 4 to the Affordable
Housing Agreement for the First Phase of Positano
Prepared By: Jeff Baker, Planning Manager
EXECUTIVE SUMMARY:
Braddock and Logan has proposed an amendment to the Affordable Housing Agreement for the
First Phase of the Positano Project, which consists of a total of 1,043 single-family lots east of
Fallon Road. The amendment proposes a minor change to the location of two of the
Inclusionary secondary units and a non-substantive change to the provisions requiring
construction of the Inclusionary Units concurrently with the market-rate units.
FINANCIAL IMPACT:
The costs to administer Affordable Housing Agreements are included in administration fees that
are charged with the sale of each affordable unit.
RECOMMENDATION:
Adopt Resolution approving Amendment No. 4 to the Affordable Housing Agreement for the
First Phase (416 Units) of Positano to modify the location of the inclusionary units within Part
One of the First Phase of the project.
S bmitted By
Community evelopment Director
eviewed
Assistant City Manager
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DESCRIPTION:
Background
Braddock & Logan's Positano development is a
residential development consisting of 1,043 single-family
homes on approximately 488-acres. The project site is
located within the northern portion of the larger Fallon
Village project area, east of Fallon Road and the Dublin
Ranch development, west and southwest of the City
Limits boundary with Alameda County and Doolan
Canyon (see Map 1 to the right). Braddock & Logan has
received approval of Site Development Review (SDR) to
construct the first phase of the development consisting of
247 homes. Construction of the homes in the first phase
is currently underway.
Affordable Housing Agreement
lnclusionary Zoning Regulations
Map 1: Positano Vicinity Map
The Inclusionary Zoning Regulations of the City of Dublin Zoning Ordinance (Chapter 8.68)
contains affordable housing requirements for all new developments of 20 or more units.
Residential deve{opments consisting of 20 or more units are required to provide 12.5% of the
units as affordable to households with very-low, low, and moderate income levels as
determined by the Califomia Department of Housing and Community Development for Alameda
County. These affordable units are required to be constructed on-site and integrated with the
market rate units. The affordable units are required to be evenly distributed throughout the
project, include a range of bedrooms consistent with the overall project, and be
indistinguishable in exterior appearance from the market rate units. The Inclusionary Zoning
Regulations also provide the City Council with the ability to make exceptions to the regulations
contained in the Inclusianary Zoning Ordinance, including alternative methods of compliance
with the Inclusionary Zoning Regulations such as the development of off-site affordable units.
In the case of the Positano development, the City Council has granted exceptions to the
method of compliance with the Inclusionary Zoning Ordinance as discussed below.
The Braddock and Logan Affordab/e Housing Proposal and the Existing Agreements
Braddock and Logan proposed an alternative means of compliance, and the City and Braddock
and Logan negotiated two agreements that set out those alternative means of compliance. The
first agreement, known as the First Phase Affordable Housing Agreement, sets out the
obligations as to the initial 416-lots in the project. The second agreement, known as the
Subsequent Phase Affordable Housing Agreement, sets out the obligations as to the
subsequent 627 lots in the remainder of the project. The First Phase Agreement has been
amended three times, and the details and history of the agreements and Braddock and Logan's
affordable housing proposal are detailed in the June 16, 2009 staff report (attached hereto as
Attachment 1). Amendment No. 3 to the First Phase Agreement, approved at the June 16,
2009 meeting, is attached as Attachment 2.
Proposed Amendment to fhe First Phase Agreement
Braddock and Logan has recently negotiated two sales of property within the First Phase of the
Positano Project. The first sale involves forty lots south of Positano Parkway to be sold to KB
Home. The second involves 43 lots north of Positano Parkway to be sold to DR Horton. In
conjunction with the latter sale, Braddock and Logan and DR Horton desire that two secondary
~~~~ ~~
Inclusionary units be moved to the 43 lots to be developed by DR Horton (See Attachment 3). If
the relocation were approved, Staff believes that the inclusionary units would be "reasonably
dispersed" throughout the First Phase as required by the Inclusionary Zoning Regulations.
The First Phase Agreement includes a preliminary construction schedule, and it indicates that if
Braddock and Logan adheres to that construction schedule it will be deemed to be constructing
the Inclusionary Units concurrently with the market rate units, as required by the Inclusionary
Zoning Regulations. Due to the various changes in its development plans and economic
conditions, Braddock and Logan's construction schedule has been in a state of flux.
Furthermore, with the land sales, other developers are responsible for constructing both market
rate and affordable units, and they will be setting their own construction schedules. Because of
these circumstances, Braddock and Logan has requested that the construction schedule be
eliminated so as to avoid confusion in the future. Under the terms of the First Phase
Agreement, staff will still have the authority to withhold building-permit issuance if it finds that
the Inclusionary Units are not being constructed concurrently with the market rate units.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
None required.
ATTACHMENTS: 1. City Council Staff Report, dated June 16, 2009, with
attachments.
2. Amendment No. 3 to Affordabls Housing Agreement for the
First Phase of Positano, dated June 16, 2009.
3. Diagram showing the proposed and existing (ocations of the
two secondary inclusionary units that are proposed to be
relocated.
4. Resolution Approving Amendment No. 4 to the Affordable
Housing Agreement for the First Phase (416 Units) of Positano
to Modify the Location of the Inclusionary Units within Part One
of the First Phase of the Project (PA 05-038 and PA 07-005)
[with the amendment attached as Exhibit A].
1 ~ ~~ ~~
RESOLUTION NO. -10
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AMENDMENT NO. 7 TO THE AFFORDABLE HOUSING AGREEMENT FOR
FIRST PHASE (416 UNITS) OF POSITANO TO MODIFY THE TYPES OF INCLUSIONARY
UNITS WITHIN THE FIRST PHASE OF THE PROJECT
(PA OS-038 AND PA 07-005)
WHEREAS, Dublin RE Investors, LLC (the Developer) is the owner of two parcels of land within
Fallon Village which together are known as Positano and consists of 1,043 residential units; and
WHEREAS, an Affordable Housing Agreement is required by the Inclusionary Zoning
Regulations of City of Dublin Zoning Ordinance (Chapter 8.68); and
WHEREAS, the Developer proposed a comprehensive affordable housing proposal to address the
requirements of the Inclusionary Zoning Ordinance for the entire Positano development and said proposal
includes alternative methods of compliance with the Inclusionary Zoning Regulations; and
WHEREAS, the City Council held a public meeting on October 18, 2005, to review the affordable
housing proposal, and the City Council directed Staff to work with the Developer to refine the affordable
housing proposal; and
WHEREAS, the City and the Developer subsequently entered into an Affordable Housing
Agreement for the Construction of Inclusionary Units in the First Phase of the Positano development,
dated June 5, 2007, as amended on June 17, 2008, November 4, 2008, June 16, 2009, October 20, 2009,
January 2010, and March 25 2010, ("the First Phase Agreement"), wherein the Developer agreed to
construct a total of 52 affordable units (11 single-family detached homes and 41 secondary units); and
WHEREAS, the First Phase Agreement specifies the level of affordability (moderate-income,
low-income, and very low-income units are proposed), the location of the required detached and
secondary units, and the phases of the Project within which the affordable units must be completed; and
WHEREAS, the City and Developer are parties to a subsequent Affordable Housing Agreement
to satisfy the affordable housing obligation for future phases of Positano; and
WHEREAS, Braddock and Logan, on behalf of Dublin RE Investars, LLC (the Developer) has
requested an amendment to the First Phase Agreement to modify the types of inclusionary units within the
First Phase of the Project.
WHEREAS, the Project has been found to be Categorically Exempt from the California
Environmental Quality Act (CEQA); and
WHEREAS, a Staff Report dated August 17, 2010, and incorporated herein by reference,
described and analyzed the proposed amendment to the Affordable Housing Agreement; and
Attachment 2
l~ ~ .
( '~~} ";; ~~~;
WHEREAS, the City Council did use its independent judgment and consider all said reports,
recommendations and testimony.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does
hereby approve Amendment No. 7 to the Affordable Housing Agreement for the First Phase (416 units) of
Positano attached hereto as E~ibit A.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute Amendment No.
7 to the Affordable Housing Agreement attached hereto as E~ibit A including the accompanying
memorandum of the agreement.
PASSED, APPROVED AND ADOPTED this 17th day of August 2010, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
1488549.1
Mayor
C:~Documents and Settings\cazolinesU.ocal Settings\Temporary Internet File,d,C~LKAA\CC Reso Approving Amendment No 7 to Positano AHA (2) (2).DOC
ca~ ~~
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AMENDMENT NO. 7 TO AFFORDABLE HOUSING AGREEMENT
FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES
IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS
Dublin RE Investors, a California limited liability company.
First Phase (416 Residential Lots) of the Fallon Village Project
THIS AMENDMENT NO. 7 TO AFFORDABLE HOUSING AGREEMENT is
hereby entered into this 17th day of August, 2010 by and between the City of Dublin ("the City")
and Dublin RE Investors, LLC, a California limited liability company, Braddock & Logan Group
II, L.P., a California limited partnership, K. Hovnanian Homes Northern California, Inc., a
California corporation, and D.R. Horton BAY, Inc., a Delaware corporation (collectively, "the
Developer").
Recitals
1. City and Dublin RE Investors are parties to an Affordable Housing Agreement for the
Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary
Housing Units, dated June 5, 2007, as amended by the First Amendment to said agreement, dated
June 17, 2008, by Amendment No. 2 to said agreement, dated November 4, 2008, by the
Amendment No. 3 to said agreement, dated June 16, 2009, by Amendment No. 4 to said
agreement, dated October 20, 2009, by Amendment No. 5 to said agreement, dated January,
2010, and by Amendment No. 6 to said agreement, dated March 25, 2010 ("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 416 of the 1043 residential lots (the "Project"). Dublin RE Investors
has conveyed some of the property subject to this Agreement to Braddock & Logan Group II,
L.P. ("Braddock and Logan"), which has become a party to the Agreement.
2. Braddock and Logan conveyed a portion of the property covered by the Agreement,
consisting of 43 lots, known as Tract 7851 ("the Western Pacific Property"), to Western Pacific
Housing, Inc. ("Western Pacific") and in conjunction therewith assigned to Western Pacific and
Western Pacific assumed Braddock and Logan's interest in the Agreement as to the Western
Pacific Property only. In conjunction with the assignment, Braddock and Logan was released
from the obligations as to the Western Pacific Property only.
3. Dublin RE Investors, LLC conveyed a portion of the property covered by the
Agreement, consisting of 69 lots, known as Tract 8036 ("the K. Hovnanian Property"), to K.
Hovnanian Homes Northern California, Inc. ("K. Hovnanian") and in conjunction therewith
assigned to K. Hovnanian and K. Hovnanian assumed Braddock and Logan's interest in the
Agreement as to the K. Hovnanian Property only. In conjunction with the assignment, Dublin
RE Investors was released from the obligations as to the K. Hovnanian Property only.
4. Braddock and Logan conveyed a portion of the property covered by the Agreement,
consisting of 681ots, known as Tract 8037 ("the DR Horton Property"), to D.R. Horton BAY,
Inc. ("DR Horton") and in conjunction therewith assigned to DR Horton and DR Horton
Amendment No. 7 Affordable Housing Agreement
First Phase of Positano Project
~iv~111'11t H
~~ b~ 5~~~
assumed Braddock and Logan's interest in the Agreement as to the DR Horton Properiy only. In
conjunction with the assignment, Braddock and Logan was released from the obligations as to
the DR Horton Property only.
5. The Agreement requires, among other things, that Developer construct 31
Inclusionary Units in Part One of the First Phase, as defined, in the locations depicted in E~ibit
3 to the Agreement. The Agreement also requires that Developer construct 21 Inclusionary
Units in Part Two of the First Phase, as defined, in locations that were approved by the City's
Community Development Director. Of the 21 Inclusionary Units in Part Two of the First Phase,
9 are required to be moderate-income, Integrated Units, and 12 are to be very low-income
Second Units.
6. Developer now desires to change the Inclusionary Units in Part Two of the First
Phase to require the construction of 22 low-income, 1-bedroom Second Units and no Integrated
Units.
7. The City is agreeable to the proposed change and fmds that the inclusionary units will
continue to be dispersed throughout the development as required by the Regulations.
8. As the proposed amendment does not affect the Western Pacific Property, the City,
Developer, DR Horton, and K. Hovnanian are the only parties required to effectuate the
amendment.
NOW, THEREFORE, Developer and City for themselves and their respective
successors and assigns hereby agree as follows:
Section 1. Amendment of Section 3 of the Agreement. Section 3 of the Agreement is
amended to read as follows:
"3. Develo~er's Compliance with Affordable Housing Obli~ation. Developer
intends to complete the First Phase, as follows.
a. Expanded First Phase (416 Residential Parcels). Developer has
identified a 416-1ot portion of the Project, which is depicted in Eghibit 2, that is referred
to herein as the "Expanded First Phase." Developer will satisfy its Affordable Housing
Obligation for the Expanded First Phase by (a) constructing 53 Inclusionary Units (one
(1) 1-bedroom, very low-income, Second Unit; twenty-nine (29) 1-bedroom, low-income
Second Units; twenty-one (21) studio, very low-income Second Uruts; one (1) 4-
bedroom, low-income Integrated Unit; and one (1) 4-bedroom, moderate-income
Integrated Unit; and (b) making a$958.77 community benefit payrnent prior to issuance
of each building permit in the Expanded First Phase as provided in Section 5 of the
Agreement. Eghibit 3 shows the location and type of the Inclusionary Units to be
constructed within the Expanded First Phase.
b. Section 8.68.030 of the Regulations requires that a11 affordable
units in a project be constructed concurrently with a project or phase of a project. If the
Building Official or Community Development Director determines that the Inclusionary
Amendment No. 7 Affordable Housing Agreement
2 First Phase of Positano Project
~ ~ ~~
~
Units have not been or are not being constructed concurrently with the market-rate units
in a particular phase, the Building Official shall withhold further issuance of building
permits in the phase until construction of the Inclusionary Units in the phase has been
completed to the satisfaction of the Community Development Director."
Section 2. Amendment of Exhibit 3. Exhibit 3 of the Agreement is hereby replaced with
Exhibit A to this Agreement.
Section 3. Revised Memorandum ofAgreement to Be Recorded. Developer and City
shall execute and acknowledge a revised Memorandum of this Agreement ("Memorandum")
substantially in the form attached hereto as Exhibit B, and City shall cause the Memorandum to
be recorded in the Official Records of Alameda County upon its execution. This Memorandum
shall supersede and replace the Memorandum referenced in the Original Agreement.
Section 4. All other provisions of the Agreement shall remain in effect.
[EXECUTION PAGE FOLLOWS]
Amendment No. 7 Affordable Housing Agreement
First Phase ofPositano Project
.p" f
/ ~ ~~
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 DEVELOPER
By:
Attest:
Joni Pattillo, City Manager
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
DUBLIN RE INVESTORS, LLC
a California limited liability company
By: Braddock and Logan Services, Inc.
a California corporation
Its: Manager
By: ~
oseph E. Raphe
Its: President
BRADDOCK & LOGAN GROUP II, L.P.
A California limited partnership
By: Braddock and Logan Services, Inc.
a California corporation
Its: General Partner
By: ~
Joseph E. Raphe
Its: President
D.R. HORTON BAY, INC.,
a Delaware corporation
By:
Richard P. Ambrosini, Vice President
1462654.5
4
K HOVNANIAN HOMES NORTHERN
CALIFORNIA, INC., a California corporation
By:_
Its:
Amendment No. 7 Affordable Housing Agreement
First Phase of Positano Project
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Positano
Expanded First Pha~e.
Affordable Unit
Locations
Neighborhood Key
1931
EGEND
- - -Expanded First Phase (4161ots)
AFFpRDABLE LOT LOCATIONS:
e Very Low Income,
One Bedroom Second Unit (1)
~ Very Low Income,
Studio Second Units (21)
X Low Income, (Unbuilt)
One Bedroom Second Units (22)
Low Income,
~ One Bedroom Second Units (7)
Q Low Income,
Four Bedroom Integrated Unit (1)
~ Moderate Income,
_~'our-Bedroom Integrated Unit (1)
~~
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N 0 R T H
NOT TO SCALE
mAC~Y~somps
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PLEASANTON. CA 94588 (925) 225-0690
p;\ 19319\EXHIBITS\EXH- NEIGH-A-B-C t dcC2-AFF-HOUSING-OVERALL-7-13- t O.DWG
Eghibit A
i~b ~~
b
RECORDING REQUESTED BY:
CITY OF DUBLIN
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Waived per GC 27383
Space above this line for Recorder's use
MEMORANDUM OF AFFORDABLE HOUSING AGREEMENT
FOR THE CONSTRUCTION OF INCLUSIONARY UPTITS AND PAYMENT OF FEES
IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS
Dublin RE Investors, a California limited liability company.
First Phase (416 Residential Lots) of the Fallon Village Project
This Memorandum of Affordable Housing Agreement for the Construction of
Inclusionary Units and the Payment of Fees In-Lieu of Constructing Inclusionary Units (this
"Memorandum") is entered into on this _ day of August, 2010, by and between the City of
Dublin, a municipal corporation (hereafter "City") and Dublin RE Investors, LLC, a California
limited liability company, Braddock & Logan Group II, L.P., a California limited partnership,
Braddock & Logan Group II, L.P., a California limited partnership, K. Hovnanian Homes
Northern California, Inc., a California corporation, and DR Horton Bay, Inc., a Delaware
corporation (collectively "the Developer").
1. Pursuant to the Affordable Housing Agreement for the Consfiruction of
Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units,
dated as of June 5, 2007, and as amended on June 17, 2008, on November 4, 2008, on June 16,
2009, on October 20, 2009, in January 2010, on March 25, 2010, and on August 17, 2010, by and
between City and Developer and with respect to certain property DR Horton Bay, Inc. (the
"Agreement"), the Parties have set forth their respective obligations with respect to the provision
of affordable units on lands presently owned by Developer, DR Horton Bay, and others to which
the Agreement has been assigned, a portion of the 1043 residential parcel Positano Project (the
"Project"), and more specifically described in E~cliibit 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 initial 416-
residential parcel phase of the developmenf of the Project ("the Expanded First Phase"). It also
obligates the Developer to make a Community Benefit Payment, as described in the Agreement, ~
prior to issuance of building permits for each residential unit (excepting Second Units) within the
Exhibit B
I ~ ~~5~
Expanded First Phase. Development on, and the City's approval of subsequent final maps that
include, any portion of the Property beyond the Expanded First Phase shall require either an
amendment to this Agreement or a subsequent affordable housing agreement ("the Subsequent
Agreement") setting forth the manner in which the Regulations will be complied with for the
remainder of the Project. The Agreement also contains the Developer's covenant, on behalf of
itself, and its successors and assigns, that it will not assert the provisions of Government Code
section 66458 to require the City to approve additional phased final maps (beyond those for the
creation of the 416 residential parcels in the Expanded First Phase) until such time as it has
entered into the Subsequent Agreement.
3. Developer and City have executed and recorded this instrument to give notice of
the Agreement, and the respective rights and obligations of Developer and City. The
unrecorded Affordable Housing Agreement for the Construction of Inclusionary Units and
Payment of Fees in Lieu of Constructing Inclusionary Housing Units is incorporated by
reference in its entirety in this Memorandum.
4. This Memorandum shall bind and inure to the benefit of the parties and their
respective heirs, successors and assigns, subject however to restrictions set forth in the
Agreement regarding assignment.
[EXECUTIONPAGE FOLLOWS`]
1 f y;
~~ 1 - ~ ~
~
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
CITY OF DUBLIN
By:
Joni Pattillo, City Manager
Attest:
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
DUBLIN RE INVESTORS, LLC
a California limited liability company
By: Braddock and Logan Services, Inc.
a California corporation
Its: Manager
By: ~'
oseph E. Raphel
Its: President
BRADDOCK & LOGAN GROUP II, L.P.
A California limited partnership
By: Braddock and Logan Services, Inc.
a California corporation
Its: General Partner
By: ~
Joseph E. Raphel
Its: President
D.R. HORTON BAY, INC.,
a Delaware corporation
By:
Richard P. Ambrosini, Vice President
K HOVNANIAN HOMES NORTHERN
CALIFORNIA, INC., a California corporation
By:_
Its:
~~~~~~ ~
RESOLUTION NO. -10
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AMENDED AND RESTATED SUBSEQUENT AFFORDABLE HOUSING
AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF
FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS
WHEREAS, Dublin RE Investors, LLC (the Developer) is the owner of two parcels of land within
Fallon Village that together are known as Positano and consists of 1,043 residential units; and
WHEREAS, an Affordable Housing Agreement is required by the Inclusionary Zoning
Regulations of City of Dublin Zoning Ordinance (Chapter 8.68); and
WHEREAS, the Developer proposed a comprehensive affordable housing proposal to address the
requirements of the Inclusionary Zoning Ordinance for the entire Positano development and said proposal
includes alternative methods of compliance with the Inclusionary Zoning Regulations; and
WHEREAS, the City Council held a public meeting on October 18, 2005, to review the affordable
housing proposal, and the City Council directed Staff to work with the Developer to refine the affordable
housing proposal; and
WHEREAS, the City and the Developer subsequently entered into an Affordable Housing
Agreement for the Construction of Inclusionary Units in the First Phase of the Positano development,
consisting of 416 lots, dated June 5, 2007, as amended on June 17, 2008, November 4, 2008, June 16,
2009, October 20, 2009, January 2010, March 25 2010, and August 17, 2010 ("the First Phase
Agreement"), wherein the Developer agreed to construct a total of 53 affordable units (11 single-family
detached homes and 41 secondary units); and
WHEREAS, subsequently, the City and Developer entered into a Subsequent Affordable Housing
Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing
Inclusionary Housing Units, dated Novernber 4, 2008, as amended on March 25, 2010 ("the Subsequent
Agreement"), for the remaining 627 lots of Positano known as the Subsequent Phase; and
WHEREAS, the Subsequent Agreement provided that Developer would satisfy its affordable
housing obligations in the Subsequent Phase by among other things constructing a 78-unit offsite
affordable housing project; and
WHEREAS, Braddock and Logan, on behalf of Dublin RE Investors, LLC (the Developer) has
determined that the offsite project is infeasible, and has therefore proposed an alternative proposal to
satisfy its affordable housing obligations, which includes the construction of 41 1-bedroom, low-income,
Second Units in the Subsequent Phase and the payment of a$1,938,760 fee in-lieu of construction; and
WHEREAS, the Project has been found to be Categorically Exempt from the California
Environmental Quality Act (CEQA); and
ATTACHMENT 3
r~l a~ ~;,,
~
WHEREAS, a Staff Report dated August 17, 2010, and incorporated herein by reference,
described and analyzed the proposed amendment to the Affordable Housing Agreement; and
WHEREAS, the City Council did use its independent judgment and consider all said reports,
recommendations and testimony.
NOW, THEREFORE, BE IT RESOLVED that:
A. The City Council of the City of Dublin does hereby find that the alternate method of
compliance with the Inclusionary Zoning Regulations contained in the Amended and Restated Subsequent
Affordable Housing Agreement (which is included as E~ibit A) and the First Phase Agreement, as
amended simultaneously herewith, including constructing 94 integrated and secondary units that will
remain affordable in perpetuity, the payment of an fee of $1,938,760 in lieu of construction, and the
payment of a prorated share of the $1,000,000 Community Benefit Payment, meet the purposes of
Inclusionary Zoning Regulations for the reasons specified in the Amended And Restated Subsequent
Affordable Housing Agreement For The Construction Of Inclusionary Units And Payment Of Fees In Lieu
Of Constructing Inclusionary Housing Units for the Subsequent Phase (627 Residential Lots of the
Positano Project ("the Amended Subsequent Agreement") attached hereto as E~ibit A.
B. The City Council of the City of Dublin does hereby approve the Amended Subsequent
Agreement attached hereto as Exhibit A.
C. The City Manager is authorized to execute the Amended Subsequent Agreement attached
hereto as Exhibit A including the accompanying memorandum of the agreement.
PASSED, APPROVED AND ADOPTED this 17th day of August 2010, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
1488579.1
Mayor
G:\PA#~2005\OS-038 B&L Stage 2 Fallon Village~Affordable Housing AgreemQn~~AHA Phases I&2 Amend 7& 2\CC Reso Approvi~g Amended and
Restated Subsequent Positano AHA (2).DOC
a~~~ .~~~
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AMENDED AND RESTATED
SUBSEQUENT AFFORDABLE HOUSING AGREEMENT
FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES
IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS
Dublin RE Investors, LLC and Braddock and Logan Group II, L.P.
Subsequent Phase (627 Residential Lots) of the Positano Project
THIS AMENDED AND RESTATED AGREEMENT ("the Agreement") is hereby
entered into this 17th day of August, 2010 ("the Effective Date") by and among the City of
Dublin ("the Cit~') and Dublin RE Investors, LLC, a California limited liability company and
Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the
Developer").
Recitals
A. Chapter 8.68 of the Dublin Municipal Code contains Inclusionary Zoning Regulations
("the Regulations"). The Regulations were adopted pursuant to Strategy I.B. of the City's
General Plan Housing Element, the purpose of which is to create affordable housing
opportunities in the City of Dublin for very low-, low- and moderate-income households.
B. The City of Dublin adopted the Regulations recognizing that the cost of new housing
is so high that persons with very low-, low- and moderate-incomes are increasingly unable to
locate affordable housing in the City. The purpose of the Regulations is to achieve a balanced
community with housing available at all income levels.
C. Accordingly, the Regulations require that residential projects with 20 or more
units/lots contain at least 12.5% very low-, low- and moderate-income units/lots. The
Regulations require that the units be constructed in the following proportions: 30% very low-
income, 20% low-income, and 50% moderate income. In lieu of constructing 40% of the
Inclusionary Units that the Regulations would otherwise require, the Regulations authorize
developers to pay a fee, currently set by the City through June 30, 2011 at $102,151 per unit
required but not built. If fees are paid in lieu of construction, developers are still required to
construct 60% of the obligation.
D. Developer is the owner of, or has the right to purchase, certain real property in the
City of Dublin generally located east of Fallon Road and more specifically described in Exhibit
1(the "Property"). The Property includes the Subsequent Phase, as defined in Section 2 of this
Agreement.
E. Developer and its successors-in-interest desire to construct a residential project on the
Property that consists of 1,043 for-sale units (collectively "the Project"), and the Project is
subject to the Regulations. The Subsequent Phase and the Expanded First Phase are depicted in
Exhibit 2.
Amended and Restated
Subsequent Affordable Housing Agreement
for the Positano Project
, , .
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F. On November 8, 2005, the Planning Commission ("PC") approved a vesting tentative
subdivision map (PC Reso. No. OS-61) ("the VTM Resolution") to create 1,043 residential
parcels, and, on September 11, 2007, the Planning Commission approved Site Development
Review ("SDR") for an initial phase of the Project on approximately 72 acres, which includes
2471ots. Developer has filed the first of "multiple final maps" based on the tentative subdivision
map, which created 247 residential parcels and is in the process of filing additional final maps.
G. Condition No. 2 of the VTM Resolution provides as follows:
Inclusionary Zoning: Prior to approval of Site Development Review or
recordation of the first phased Final Map, whichever occurs first, the owner or
owners of all the property subject to this vesting tentative map shall enter into an
Affordable Housing Agreement with the City for the entire Vesting Tentative
Map area, which agreement shall be recorded against such area and against any
other property where Developer proposes to construct off-site affordable units if
approved by the City Council pursuant to Dublin Municipal Code section
8.68.040.B. Such agreement shall include but is not limited to providing detail
regarding the number of affordable units required, specify the schedule of
construction of affordable units, set forth the developer's manner of compliance
with City of Dublin Inclusionary Zoning Regulations and impose appropriate
resale controls and/or rental restrictions on the affordable units. If the agreement
provides for construction of the units off-site, as provided in DMC section
8.68.040.B, it shall require City Council approval and Council findings as
required by said section and shall include provision for security adequate to assure
completion of the off-site affordable units concurrently with the completion of the
construction of the market rate units to be constructed on the lots created by the
vesting tentative map.
H. Under the Regulations, the City Council may wholly or partially waive the
requirements of the Regulations and approve alternate methods of compliance with this Chapter
if the applicant demonstrates and the City Council finds that such alternate methods meet the
purposes of the Regulations.
I. Based on 1,043 units, the Developer's inclusionary zoning obligation under the
Regulations would be 130 units (1,043 times 0.125 equals 130.375), and it would be permitted to
pay fees in lieu of construction to satisfy the obligation as to 52 units (130 times 0.4 equals 52),
leaving a must-build obligation of 78 units.
J. In the fall of 2005, as means of satisfying its inclusionary housing obligations for the
entire 1,043 unit project, Developer proposed an alternative method of compliance that would
result in the construction of a total of 130 inclusionary units.
K. Specifically, under its initial proposal, Developer proposed to: (a) build 26 integrated
units on 4,000 square foot lots, which would be fully compliant with the Regulations, and would
in addition be affordable in perpetuity; (b) build 26 1-bedroom, secondary dwelling units on
6,000 square foot lots, which would be rental units and affordable in perpetuity; (c) build an 88-
Amended and Restated
Subsequent Affordable Housing Agreement
for the Positano Project
~ ~~
unit off-site affordable project consisting of 2 bedroam, 2 bathroom rental apartments, which
would include 78 inclusionary units to satisfy the obligations of the Project; and (d) contribute a
$1,000,000 community benefit payment to the City.
L. Subsequently, the City and Developer entered into an initial affordable housing
agreement ("the First Phase Agreement"), dated June 5, 2007, for the first phase of the Project,
which consisted of 247 residential parcels, the location of which is shown on Exhibit 2. That
agreement was subsequently amended on June 17, 2008, November 8, 2008, June 16, 2009,
October 20, 2009, January, 2010, March 25, 2010, and again concurrently with the execution of
this Agreement. As amended, the First Phase Agreement expa.nded the number of residential
units subject to the First Phase Agreement from 247 units to 416 units. The 416 units covered by
the First Phase Agreement are referred to as "the Expanded First Phase."
M. The First Phase Agreement as amended satisfies the affordable housing obligations
solely as to the Expanded First Phase and provides that further development beyond the
Expanded First Phase would require a subsequent affordable housing agreement.
N. Accordingly, the parties entered into that subsequent affordable housing agreement
("the Original Subsequent Agreement"), dated November 4, 2008 and amended on March 25,
2010, that sets forth the additional affordable housing obligations for those portions of the
Project outside of the Expanded First Phase.
O. The Original Subsequent Agreement provided that Developer would satisfy its 130
inclusionary unit obligation for the Project by (a) constructing a total of 130 inclusionary units as
follows: (i) 18 integrated inclusionary units, which would be affordable in perpetuity, rather than
for 55 years as the Regulations require ("Integrated Units"), (ii) 34 1-bedroom, secondary
dwelling units, which would be rental units and affordable in perpetuity, rather than for 55 years
as the Regulations require ("the Second Units"), and (iii) 78 off-site affordable rental units; (b)
making a community benefit payment prior to issuance of each building pernut equal to $958.77
(which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043
units proposed in the Project); (c) including rear yard landscaping and energy efficiency
measures to reduce the homeowners' cost of living in the 18 integrated inclusionary units; and
(d) incorporating green building principles into the 130 inclusionary units.
P. Developer has determined that it is infeasible to construct the 78 off-site affordable
rental units, and it has, following further discussions with City staff, proposed the following
alternate method to satisfy its 130-unit obligation for the Project: (a) conshucting a total of 94
units as follows: (i) 2 integrated inclusionary units (1 low income and 1 moderate income),
which are or would be affordable in perpetuity, rather than for 55 years as the Regulations
require ("the Integrated Units"), (ii) 21 studio and 71 1-bedroom, secondary dwelling units (1
very low income and 70 low income); (b) paying a fee (in three installments) of $1,938,760 in-
lieu of construction of inclusionary units; (c) making a community benefit payment prior to
issuance of each building pernut equal to $958.77 (which amount is calculated based on the
proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); (d)
including rear yard landscaping and energy efficiency measures to reduce the homeowners' cost
Amended and Restated
Subsequent Affordable Housing Agreement
for the Positano Project
f~~
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of living in the 2 integrated inclusionary units; and (e) incorporating green building principles
into the 130 inclusionary units.
Q. The City Council hereby finds that the alternate method of complying with the
Regulations for the Project, as set forth below and in the First Phase Agreement as amended,
meets the purposes of the Regulations, because it results in the creation of inclusionary units (94)
in excess of the Developer's must-build obligations under the Regulations (78), because the
proposal includes deeper affordability than required under the Regulations (71 low income
versus the 16 required), and because the in-lieu fee payrnent will be made earlier than otherwise
required by the Regulations.
R. The parties wish to amend and restate the Original Subsequent Agreement in order to
incorporate Developer's revised alternate method of complying with the Regulations.
NOW, THEREFORE, in satisfaction of the requirements of Chapter 8.68 of the Dublin
Municipal Code, in partial satisfaction of condition 2 of the VTM Resolution and in
consideration of the City's approval of the Project, Developer and City for themselves and their
respective successors and assigns hereby agree as follows:
1. Amendment and Restatement. This Agreement amends and restates the Original
Subsequent Agreement in its entirety.
2. Definitions and Interpretations. Terms used in this Agreement shall be defined as
set forth in Chapter 8.68 of the Dublin Municipal Code.
3. Developer's Compliance with Affordable Housing Obli a~ tion. Developer intends
to complete the Project in multiple phases. Section 8.68.030 of the Regulations requires that all
affordable units in a project be constructed concurrently with a project or phase of a project. The
City hereby finds that adherence to the following schedule of construction for the Inclusionary
Units would constitute construction of the Inclusionary Units concurrently with the market rate
units in the Project as required by Section 8.68.030 of the Regulations.
a. Expanded First Phase (Initia1416 Residential Parcels). The First Phase
Agreement, as amended, requires that the Developer will satisfy its 52-unit Affordable Housing
Obligation for the Expanded First Phase, which is depicted in Exhibit 2, by (a) constructing 53
Inclusionary Units (1 1-bedroom, very low-income, Second Units; 21 studio, very low-income,
Second Units; 29 1-bedroom, low-income, Second Units; 1 4-bedroom, low-income Integrated
Unit; and 1 4-bedroom, moderate-income Integrated Unit); and (b) making a$958.77 community
benefit payment prior to issuance of each building permit in the Expanded First Phase.
b. Subsequent Phase (627 Residential Parcels). Developer has identified a
627-1ot portion of the Property that is referred to herein as the "Subsequent Phase." The
Subsequent Phase is depicted in Exhibit 2 and consists of the neighborhoods that are referred to
as Neighborhood C3 (a portion), Neighborhood D1, Neighborhood D2, Neighborhood D3,
Neighborhood E1, and Neighborhood E2. Developer will satisfy its Affordable Housing
Obligation for the Expanded First Phase by (a) constructing 41 1-bedroom, low-income, Second
Units; (b) paying in-lieu fees as provided in Section 4 of the Agreement; (c) making a$958.77
Amended and Restated
Subsequent Affordable Housing Agreement
4 for the Positano Project
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community benefit payrnent prior to issuance of each building permit in the Subsequent Phase
(excepting Second Units) as provided in Section 5 below.
i. Exhibit 3("the Location Diagram") depicts the location of the 41
1-bedroom, Second Units to be constructed in a portion of the Subsequent Phase known as
Neighborhoods C3, Dl, and D2. Developer may request that the Community Development
Director approve changes to the Location Diagram that alter the location of the Second Units.
Upon the Community Development Director's approval, which shall be administrative, the
revised Location Diagram shall be automatically incorporated into this agreement as Exhibit 3,
replacing the previous Exhibit 3. In approving any revised Location Diagram, the Community
Development Director shall find (a) that the Location Diagram shows 20 Second Units in
Neighborhood C3, 10 Second Units in Neighborhood D1, and 11 Second Units in Neighborhood
D2; and (b) that the Inclusionary Units are "reasonably dispersed" throughout Neighborhoods
C3, D1, and D2, as required by Section 8.68.030.E of the Regulations.
c. If the Building Official or Community Development Director determines
that the Inclusionary Units have not been or are not being constructed in the locations depicted
on Exhibit 3 or have not been or are not being constructed concurrently with the market-rate
units in Neighborhoods C3, D1, and D2 as required by this Section 3, the Building Official shall
withhold further issuance of building permits in the Subsequent Phase until construction of the
Inclusionary Units has been completed to the satisfaction of the Community Development
Director.
4. In-Lieu Fees. Developer shall pay in-lieu fees of $1,938,760 in partial
satisfaction of its obligation to construct 130 Inclusionary Units within the Project. The
payments shall be made in installments as follows:
First Payment 90 days after Effective Date $775,504
of this Agreement
Second Payment 24 Months after Effective $775,504
Date of this Agreement
Third Payment 36 Months after Effective $387,752
Date of this Agreement
Total $1,938,760.00.
If Developer fails to make any of the installment payments when due, the City may, until such
installment payments are made, withhold any authorizations or services to the Project, including,
but not limited to, the issuance of building permits, occupancy authorizations, and the processing
and approval of final maps. Developer hereby agrees that it will not assert the provisions of
Government Code section 66458 to require the City to approve additional phased final maps
until such time as it have made any installment payments under this section that have come due.
5. Communitv Benefit Payment. As provided in Section 3(b) above, Developer
hereby agrees to make a$958.77 community benefit payment prior to issuance of the building
Amended and Restated
Subsequent Affordable Housing Agreement
5 for the Positano Project
a~~~~
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permit for each residential unit (excepting Second Units) in the Subsequent Phase. The
community benefit payment required by this Section shall be in addition to the $2,396.93
community benefit payment required by the Development Agreement for the Fallon Village
Project between Developer and the City, dated December 20, 2006.
6. Inclusionary Unit Design, Location, and Size.
a. Exterior Materials and Exterior Architectural Desi~n. The exterior
materials and exterior architectural design of the Inclusionary Units shall be consistent with the
Project's market-rate units upon their review and approval through the Site Development Review
by the Planning Commission; provided, however, that minor changes to unit size may be
approved by the Community Development Director through a Site Development Review waiver.
b. Unit Location. Consistent with Section 8.68.030 of the Regulations, the
Inclusionary Units shall be dispersed throughout the individual phase in which they are
constructed.
c. Green Buildin Princi l~es. Construction of the Secondary Units shall
incorporate Green Building Principles by meeting the minimum requirements for a green home
set forth in the "Single Family GreenPoint Checklist" attached hereto as Exhibit 4.
d. Unit Bedrooms and Size. The developer proposes to provide: 41 low-
income, 1 bedroom, Secondary Units. The City hereby finds that, while this breakdown does not
reflect the range of numbers of bedrooms provided in the Proj ect as a whole, as required by
Section 8.68.030.E of the Regulations, the Developer's alternate method of compliance meets the
purposes of the Regulations.
7. Re~ulatorv A~reements. 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 Exhibit 5.
Developer shall ensure that the initial buyer attends an orientation session, provided by an
independent third party approved by the City, that describes the requirements of the Secondary
Unit Regulatory Agreement.
8. City Administrative Fee. Prior to the City's execution of either the Resale
Agreement or Second Unit Regulatory Agreement, Developer shall pay the City a City
Administrative Fee, in an amount to be established from time to time by the City Council and
which is currently set at $1,500 per transaction.
9. Term. This Agreement shall be effective until all Inclusionary Units in the
Subsequent Phase are constructed, sold, and subjected to resale restrictions approved by the City
pursuant to the terms of this Agreement; and the Developer has satisfied the requirements
contained in sections 4 and 5 of this Agreement.
10. Memorandum of AQreement to be Recorded. Developer and City shall execute
and acknowledge a Memorandum of this Agreement ("Memorandum") substantially in the form
Amended and Restated
Subsequent Affordable Housing Agreement
for the Positano Project
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attached hereto as Exhibit 6, and City shall cause the Memorandum to be recorded in the
Official Records of Alameda County upon its execution.
11. A~reement Runs with the Land. All of the provisions, rights, terms, covenants,
and obligations contained in this Agreement shall be binding upon the Parties and their
respective heirs, successors and assignees, representatives, lessees, and 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 Party and the Property
hereunder and each other person succeeding to an interest in the Property.
12. Assi~nments and Transfers.
a. Ri~ht to Assign. Developer may wish to sell, transfer or assign all or
portions of its Property to other developers (each such other developer is referred to as a
"Transferee"). In connection with any such sale, transfer or assignment to a Transferee,
Developer may sell, transfer or assign to such Transferee any or all rights, interests and
obligations of Developer arising hereunder and that pertain to the portion of the Property being
sold or transferred, to such Transferee, provided, however, that: no such transfer, sale or
assignment of Developer's rights, interests and obligations hereunder shall occur without prior
written notice to City and approval by the City Manager, which approval shall not be
unreasonably withheld or delayed. Notwithstanding the foregoing, provided notice is given as
specified in Section 19, no City approval shall be required for any transfer, sale, or assigmment of
this Agreement, in whole or in part, to any entity ar group, a majority interest of which is owned
or held under common control with Developer ("Affiliate"), provided that in the event of a
partial transfer, Developer has, at the time of the transfer, complied with all obligations of this
Agreement then required or provided evidence satisfactory to the City Manager demonstrating
that the remaining obligations have been allocated between Developer and Affiliate.
b. A~proval and Notice of Sale Transfer or Assi ent. The City Manager
shall consider and decide on any transfer, sale or assignment within ten (10) days after
Developer's notice thereof, provided all necessary documents, certifications and other
information are provided to the City Manager to enable the City Manager to determine whether
the proposed Transferee can perform the Developer's assigned obligations hereunder. Notice of
any such approved sale, transfer or assignment (which includes a description of all rights,
interests and obligations that have been transferred and those which have been retained by
Developer) shall be recorded in the official records of Alameda County, in a form acceptable to
the City Manager, concurrently with such sale, transfer or assignment.
c. Effect of Sale, Transfer or Assignment. Developer shall be released from
any obligations hereunder sold, transferred or assigned to a Transferee pursuant to Section 1 l.a
of this Agreement, provided that: a) such sale, transfer or assignment has been approved by the
Amended and Restated
Subsequent Affordable Housing Agreement
7 for the Positano Project
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City Manager pursuant to Sections 12.a and 12.b; and b) such obligations are expressly assumed
by Transferee and provided that such Transferee shall be subject to all the provisions hereof.
d. Termination of AQreement Upon Sale of Individual Lots to the Public.
Notwithstanding any provisions of this Agreement to the contrary, the burdens of this Agreement
shall terminate as to any lot which has been finally subdivided and individually (and not in
"bulk") sold to the purchaser or user thereof and thereupon and without the execution or
recordation of any further document or instrument such lot shall be released from and no longer
be subject to or burdened by the provisions of this Agreement.
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 a$er notice thereof is given by the
City (ar such longer period as may be necessary to cure the default, provided that Developer
commence the cure within the thirty (30) day period and diligently prosecutes the cure to
completion), the City may take any one or more of the following steps:
a. By specific performance or other action or proceeding at law or in equity,
require the Developer to perform its obligations under this Agreement or enjoin any acts or
things which may be unlawful or in violation of the rights of the City hereunder.
b. Take such other action at 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.
Amended and Restated
Subsequent Affordable Housing Agreement
$ for the Positano Project
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16. Attornevs' Fees. If legal action is necessary to enforce any provisions of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and legal costs.
17. Amendments. This Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in interest and duly recorded in the Official
Records of the County of Alameda, California.
18. Corporate 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. All notices required or provided for under this Agreement shall be in
writing. Notices required to be given to CITY shall be addressed as follows:
City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Notices required to be given to Developer shall be addressed as follows:
Jeff Lawrence
Dublin RE Investors
Braddock & Logan Group II, L.P.
4155 Blackhawk Plaza Circle, Suite 201
Danville, CA 94506
FAX No. (925) 648-5700
A party may change address by giving notice in writing to the other party and thereafter all
notices shall be addressed and transmitted to the new address. Notices shall be deemed given
and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being
deposited in the United States Mail. Notices may also be given by overnight courier which shall
be deemed given the following day or by facsimile transmission which shall be deemed given
upon verification of receipt.
20. Exhibits. The following documents are referred to in this Agreement and are
attached hereto and incorporated herein as though set forth in full:
Exhibit 1 Property Description of the Property
Exhibit 2 Diagram of the First Phase and Subsequent Phase of the Project
Exhibit 3 Form of Diagram and Location of Inclusionaxy Units in the Subsequent
Phase of the Project
Exhibit 4 Single Family GreenPoint Checklist
Amended and Restated
Subsequent Affordable Housing Agreement
for the Positano Project
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Exhibit 5 Form of Secondary Unit Regulatory Agreement
Exhibit 6 Memorandum of Subsequent Affordable Housing Agreement for the
Construction of Inclusionary Units and the Payment of Fees In-Lieu of
Constructing Inclusionary Housing Units
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
CITY OF DUBLIN
By:
Joni Pattillo, City Manager
Attest:
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
DUBLIN RE INVESTORS, LLC
a California limited liability company
By: Braddock and Logan Services, Inc.
a California corporation
Its Manager
By:
Name ^.b sWti 6. 2~0~
Its: ~,•. s,~j,~
BRADDOCK & LOGAN GROUP II, L.P.
A California limited partnership
By: Braddock and Logan Services, Inc.
a California corporation
Its General Partner
By:
N : 1'a ~.~~, G. RaP~,.l)
Its: P,~,~.E,~-,
1481526.4
Amended and Restated
Subsequent AfFordable Housing Agreement
~ ~ for the Positano Project
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0
19319-O1C
7/30/2010
EXHIBIT
POSITANO SUBSEQUENT PHASE:
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF DUBLIN, COUNT'Y OF
ALAMEDA, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
PARCEL B-1 AS SAID PARCEL IS SHOWN ON T'F~ MAP OF TRACT 7853, FILED IN BOOK 303
OF MAPS AT PAGES 1 THROUGH 5, A PORTION OF RESULTANT PARCEL B-2 OF LOT LINE
ADNSTMENT LLA-10-O1, APPROVED BY THE CITY OF DUBLIN IN CERTIFICATE OF
COMPLIANCE RECORDED IN SERIES NUMBER 2010-80274, AND A PORTION OF RESULTANT
PARCEL D-1 OF LOT LINE ADJUSTMENT LLA-08-O5, APPROVED BY THE CIT'Y OF DUBLIN IN
CERTIFICATE OF COMPLIANCE RECORDED IN SERIES NLJMBER 2008120732, ALAMEDA
COLJNTY RECORDS,
EXCEPTING THEREFROM THE FOLLOWING:
THE LOTS DESIGNATED AS LOT 1 THROUGH LOT 7 OF THAT CERTAIN MAP ENTITLED
"TRACT 7855" AND TI~ LOTS DESIGNATED AS LOT 1 THROUGH LOT 23 OF THAT CERTAIN
MAP ENTTI'LED "TRACT 8051" ALt1MEDA COUNTY.
SAID AREA BEING MORE DEFINED AND PARTICULLY SHOWN ON THE EXHIBIT ENTTI'LED
"POSITANO PROPERTY BUII,DOUT PHASES EXHIBIT"'
END OF DESCRIPTION
A PORTION OF APN'S 985-0028-007-02, 905-0002-003, 985-0075-004 & 985-0075-010
mAC~Y~somps
CIVIL ENGINEERING~LAND PLANNING~ LAND SURVEYING
5142 FrankGn Drive SuiTe B, PleasanTon, CA. 94588-3355
(925) 225-0690
P:\I9319Vegals~DESCRIPT'ION -AFFORDABLE IJNIT IOCATIONS.DOC
~iv~i~,1- 1
PARCEL 2
PARCEL MAP 8327
(298 M 14-17)
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CITY OF DUBLIN COUNTY OF ALAMEDA CALIFORNIA IBM o7-30-~0 t"=5oo' 19319-01C
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DUBLIN, CALIFORNIA
tt~~,oK~~~, E,a~.
rs~:~,n„~.~~ .~a~o:n.~a,o~
POSITANO
PROPERTY
DESCRIPTION
BUILDOUT
PHASES
~
o~ 300~ 600' i2ao~
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19319-0
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Subsequent Phase:
Affordable Unit
Locations
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I Neighborhood Key I
19319-0I
LEGEND
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Nagh. C3, D 1~ D2
Expmded Fitst Phaso
AFFORDABLE LOT LOCATIONS:
Low tncomq
X OneHadmom5xondUnita (4Q
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M011TM
NOT TO SCALE
m~a~r~son~s
cml cNaNmapc.Lwo n,waNG.wa SuavEllHc
PIFASWiON. CA 915BE (925) 1]5-OB90
FYh;h;~ 2
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Single Family GreenPoint Checklist date:
The GreenPoint checklist tracks green features incorporated into the home. The recommendetl mini-
mum requirements for a green home are: Earn a total of 50 points or more; obtain the following minimum
points per category: Energy (11), Indoor Air QualitylHeaith (5), Resources (6): and Water (3); and meet
the prerequisites A.3.a (50°6 construction waste diversion) and N.1 (Incorporate Green Points checkiist
in bluepnnts)
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1?1^ j.,. C,€'1~u: i~ ..i, I.a?., ~ 5::,;7 h~a^v. ~i.. c.:i:.i;C~}3cC, ;} C?lr? .. .. t.G:'lf' ~.,fi#'"x. -.E,:.ii'~ l~.c. °1 u.,...:.i::
,.:;;ic;iir~::s. ;~rai?ca;;(e r~i;vti~r:.r.buildita-e~r.urg.
~~ Build It ~re~~
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B. L~1~DSCAPIN(~ P.ossible Points
1. Construct Resource-Effcient Landscapes
^ a. No Invasive Species Listed by Cal-IPC Are Planted ' =
^ b. No Plant 5pecies WII Require Hedging
~._ ..,. _._ ._. w .... _ .. ,_ _~
^ c. 75°0 of Plants Are Califomia Natives or Mediterranean Species
^ 2. Use Fire-Safe Landscaping Techniques
3. Minimize Turf Areas in Landscape Installed by Builder
^ a. All Turf N~ill Have a Water Requirement Less than or Equal to Tail Fescue ~ ; 2
^ b. Turf Shall Not Be Installed on Slopes Exceeding 10%or in Areas Less than 8 Feet ~Yde 2
^ a Turfis <33% ofLandscaped Area ; ; ~ t
^ d. Turf is <t D°ia of Landscaped Area ~ 1
4. Plant Shade Trees i, ' ~
5. Implement Hydrozoning: Group Plants by Water Needs '
6. Install High-Efficiency Irrigation Systems
^ a. System Uses Only Low-Flow Drip, Bubblers, or Low-flow Spnnkiers "
~ _ ,. _. _. . .; .
^ b. System Has Smart (Weather-Based) Controilers 2
^ 7. Apply Two Inches of Compost in the Top 6 to 12 Inches of Soil ~
^ 8. Muich All Planting Beds to the Greater of 2 Inches or Local Water Ordinance Requirement
^ 9. Use 50°~ Salvaged ar Recycled-Content Materials for 50% of Non-Plant Landscape Elements i
^ 10. Reduce Light Poilution by Shielding Fixtures andlor Directing Light Downward
(:. ROl'NDA7'lOti µ _. __~~ _,~.~ ~~,, Possible Pqints
~ 1. Incorporate Recycled Flyash in Concrete
^ a. Minimum 20% Flyash ~ -
^ b. Minimum 25%Flyash W_~_ __
_ .~.____ __ ___. _.....~_._~_ __.W_._._ _ _.~..~ ___.. _~.....~...
~ 2. Use FroshProtected Shallow Foundation in Coid Areas (C.E.C. Climate Zone 16) ~ _u~~ ~ wµ 3-
_______~.~_.__._._ _ ..__... _. ..~.._.____ ... _~~,_.._-..._ ._._.. _ _ ..,_.____m_
^ 3. Use Radon Resistant Construction (In At•Risk Locations Only) ~
___ . .
n_ ~7'airc~TTTRA7, FR,1NiF, & BlTiLDI\G EIVti'F,LOPE: Possibie Points
1. Apply Optimal Value Engineering
^ a. 2x4 Studs at 24-Inch On Center Framing
^ b. Door and Window Headers Sized for Load
^ c. Use Only Jack and Cnpple Studs Required for Load
Single-Family GreenPoint Checklist
2006 Edition
Page 1 of 4
Exhibit 4
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2. Use Engineered Lum6er _-
^ a. Beams and Headers ~
^ b.lnsulated Engineered Headers ~x
^ c. Wood I-Joists or Web Tivsses for Floors ~, _
^ d. Wood I-Joists or Raflers _
^ e. Engineered or Finger-Jointed Studs for Vertical Appiications _~ w~ , ~ u mw
~ 3. Use FSGCertified Wood ~
^ a. Dimensional Studs: Minimum 40°!0 _~~ _... _
^ b. Dimensional Studs: Minimum ; 0°l0 ~
^ c. Panel Products: Minimum 40% -
^ d. Panel Products~ Minimum 70°~a
_~ -
~^~ 4. Design Energy Heels on Trusses (75% of Attic Insulation Height at Outside Edge of Exterior Wall) '
^
~~ 5. Design Trusses to Accommodate Ductwork
~ ~~ ~ ~ '~ ~ ~~ __._._.__._ v_ _ i ~ '. _
Use Oriented Strand Board (OSB)
6 -
. ~
^ a. Subfloor ` - __ .
__
^ b.5heathing
~~ ~~ ~~~ ' ' ' ~
~~ ~~~ ~
7. Use Recycled-Content Steel Studs for 90% of Interior Wall Framing
~ Use Solid Wall Systems (Includes SIPs, ICFs, 8 Any Non•Stick Frame Assembly)
8
^ .
a. Floors 2 2 ~
~. _., ~ _
^ b. Walls
. ~~_.. _. ._ ., :_ _; ...
^ c. Roofs _.
~ ~ 2
^ ~~
9. Thermal Mass Walls: 518•Inch Drywall on All Interior Walls or Walls Weigh more than 40 Iblcu.ft.
~W 1
10. Design and Build Structural Pest Controls
^ a. Install Termite Shields & 5eparete All Exterior Wood-to-Concrete Connections
i i
~ by Metal or Plastic Fasteners/Dividers '
_ , __ . __
^ b. All New Plants Have Trunk, Base, or Stem Located At Least 36 Inches from Foundation ~ ~~
~ 11. Reduce Pollution Entering the Home from the Garage
^ a. Tightly Seal the Air Barner between Garage and Living Area ~ '
_.
^ ~ Wv W~mT~~ ~w _____~~
b. Install Separate Garage Exhaust Fan
~
12. Install Overhangs and Gutters
^ a. Minimum 16-Inch Overhangs and Gutters = .,~',,,, _ w_ _.
^ ~~~ ~ ~_
b. Minimum 24-Inch Overhangs and Gutters
~
E. ~?~TERIt1R FL'~TISEI ~
~ Possible Points
~^ 1. Use Recycled-Content (No Yrgin Plastic) or FSGCertified Wood Decking s ~ ~ 2~'
^ 2. Install a Drainage Plane (Rain Screen Wall System) £ ~
3. Use Durable and Non-Combustible Siding Materials
4. Select Durable and Non•Combustible Roofing Materials 1
1. Distribute Domestic Hot Water EfflcienUy
^ a. Insulate Hot Water Pipes from Water Heater to Kitchen ~ ' ~
_ . . _ . ' ....
^ b. Insulate All Hot Water Pipes OR Install On-Demand Hot Water Circulation System ,
in conjunction with F.1.a Insulate Hot Water Pipes from Water Heater to Kitchen ` ? ~
^ c. Locate the Water Healer within 25 feet of All Hot Water Fixtures and Appliances _
^ d. Use Engineered Parallel Piping ~~~_~~~„_~, _,,,___ -
~...~.._...__°_~______ - .. ~___. _._
^ 2. install Only High Efficiency Toilets (Dual-Flush or <=1.3 gpf) -~
CY. ~PPLIA\CES ' ' " ; ! ' IPossible Points
~~~~~~~~ ~~ ~~~~
~ ~ 1. Install ENERGY STAR Dishwasher
^ a. ENERGY STAR _ =
_.....
^ b. Dishwasher Uses No More than 6.5 Gallons/Cycle ~ ''
~ 2. Install ENERGY STAR Clothes Washing Machine with Water Factor of 6 or Less wy~ W~~~~ v~W~_ ~
~ 3. Install ENERGY STAR Refrigerator
~
^ a. ENERGY STAR:15°/a above Federai Minimum ~'
. ..
^ b. Super-Efficient Home Appliance Tier 2: 25% above Federal Minimum ~ ~ ~
^ 4. Install Built-in Recycling Center ~Y ~______ _ ~._ _ ' ~
Single-Family GreenPoint Checklist 2006 Edition Page 2 of 4
~ ~~~
iNtiUI.STiAN ' _ _.._W.._ .__ _: _ ._.._ ...___. _.:;~ _~:
_.~~_~: _.._;.......__..__~...:....~._~___.._~_ _...~~ __.~ ~.~_
1. Install Insulation with 75% Recycled Content
^ a. Walls andlor Floors
^ b. Ceilings a-.__.._ -. -._..~__.. _._..__a...e
___ . . >_.~.__. __.._._.
~ 2. Install Insulation that is Low Emitting (Certified Section 0135D)
^ a. Walls andlor Floors
^ b. Ceilings .._,,.~---- -----.--w-.-
~.... _._.._.., _ _._ _._._ _ ._______...W .______ __.. ~_..___..._ _ _...~ __.. __. _. ___. _. .
^ 3. Pre•Drywall Inspection Shows Quality Installation of Insulation
~ ~ ~ ~
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a _ _„„__L,_,„ _._-_.
( ~~ Possible Points
.._ --- _
0% 1. Design and Build High Performance Homes (2 points for each 1% above T•24, up to 30 pts) ; j~
Enter the percent above Title 24 in the cell at leR. Any value over 15% will automatically earn 30 points. ~~
^ 2. House Obtains ENERGY STAR with Indoor Air Package Certification ~~~ ~ ~ ~
m_mm~ 3. Inspedion and Diagnostic Evaluations ~ ~ 1
^ a. Third Party Energy and Green Building Review of Home Plans
^ b. Blower poor Test Performed -" ' ,-= t
(] c. House Passes Combustion Safety Backdraft Test ~, .ry,~,e~~,. e~.._~ ~.~._.~ ' ~ ~
^ 1. Pre-Plumb for Solar Hot Water Heating ;~~
^ 2. Install Solar Water Heating System
3. Install Wiring Conduit for Future Photovoltaic Instailation 8~ Provide 200 ft~ of South-Facing Roof ~~~~~
~ 4. Install Photovoltaic (P~ Panels ~ ~
^ a.1.2 kW System ~~-
F~
^ b. 2.4 kW System - ~°
^ c. 3.6 kW or more -
Single-Family GreenPoint Checklist 2006 Edition Page 3 of 4
~~ ~
~
11I. FLOO1tIN~ Possible Points
1. Use Environmentally Prefereble Flooring: A) FSC-Certified or Reclaimed Wood, B) Rapidly Renewable ~
Flooring Materials, C) Recycled-Content Ceramic Tiles, D) Exposed Concrete as Finished Floor or E) Recycled• i
Content Carpet Nofe: FlooringAdhesives Must Have <50 gpl VOCs. ~
^ a.Minimum15%ofFloorArea ' ~
-
^ ., .,,..
. .
b. Minimum 30% of Floor Area
~
^ c. Minimum 50°/a of Floor Area '
~
^ d. Minimum 75% of Floor Area
~
^ 2. Thermal Mass Floors: Fioor Covering Other than Carpet on 50% ar More of Concrete Floors
^ 3^Flooring Meets SecGon 01350 or CRI Green Label Plus Requirements (50% Minimum) ~~~~ 2 `
^ t. lncorporate Green Points Checklist in Blueprints - Required ~ R.
~ ~.~~.~..~__..~~ ~ ~
^~ 2. Develop Homeowner Manual of Green Featuresl8enefits I . :i.
~ 3. Community Design Measures 8~ Locai Priorities: See the Community Planning 8~ Design section in Chapter 4 of the New Home Guidelines for measures.
~ Maximum of 20 points for suggested measures. locai requirements may also be listed here.
~........ _........_.. .. . _ .... _... __... __ __
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.... . . . . .. ... . . .T
...... ,~..._ ..... ... ........ . ~ _ .......~..~ ... ____. . ~,~ . _...~... _........ _ .._.. __ , m. _.
p Enter description here
~ ..... ....... ._ .._.,......_.. __.. _.__.._.. .. ._.. .,.~....,. ....._... ,, ,. ,~.......,.
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4. Innovation: List innovative measures that meet the green building objectives of the Guidelines. Enter up to a maximum combined total of 20 pts. See Innovation
Checklist for suggested measures.
p Innovation in Community: Enter description here "°'""'""`""""""`" ~~~-~---~--~--~-~---~___._._~_._._..
~. _ ....... . ..... ...~...... • .., . __ : ,..
p Innovation in Energy: Enter description here
p Innovation in IAQ/Health: Enter description here
_.. _ . _ _ _ _ _ _ ___ _.
p Innovation in Resources: Enter description here
.,....,.... .... ..... .. . ... ...... .. ..,. .... _... .
_
p Innovation in Water. Enter description here
Points Achieved from Specific Categories
Total Points Achieved
Project ~as not yet met the recommended minirt~um ree{uirements
- Tat~l Project Score of 1~t Least SO Points
- i9;nim.um, points in s~ecific cateyories: Enerr~y (11), IL!Q,jNealth (`5), Resourc~s j5), L~'ater (3;
- Reouired me~sures A.3.a ar~cf!or• N.1
Single-Family GreenPoint Checklist 2006 Edition Page 4 of 4
~1 ~ ~
~
RECORDING REQUESTED BY:
CITY OF DUBLIN
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Waived per GC 27383
Space above this line for Recorder's use
SECONDARY UNIT REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
Owner:
Property Address:
Dublin, California
Name of Development: Positano
This Secondary Unit Regulatory Agreement and Declaration of Restrictive
Covenants (this "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 and Owner are hereinafter collectively referred to as the "Parties."
Recitals
A. Owner is the owner of certain real property that contains a secondary
dwelling unit, which is located in the City of 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 May 7, 2007
Page 1 of 10
K:\Inclusionary Developments\Cantara @ Positano\Marketing-Outreach Materials\Positano Second Unit
Regulatory Agreement 07-30-10.DOC
Exhibit 5
~n~ ~ ~~
B. The developer of the Project chose to satisfy its obligations through among
other things the construction of 41 secondary units on some of the residential lots in the
Project, including on the 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.
^ Low-income: 50% to 80% of Area Median Income.
^ Moderate-income: 80% to 120% of Area Median Income.
"Area Median Income" or "AMI" means the area median income for Alameda
County, California, adjusted for household size, published periodically by the California
Department of Housing and Community Development ("HCD") in Section 6932 of Title
25 of the California Code of Regulations ("Regulations") or successor provision
published.
"Eligible Household" means a household whose gross income does not exceed
the Applicable Income Level and that is otherwise eligible to rent a Restricted Unit.
"Qualifying Rent" means a monthly rent which does not exceed one-finrelfth of
thirty percent (30%) of the Applicable Income Level adjusted for household size, less a
utility allowance as specified by the Housing Authority of Alameda County.
"Restricted Unit" means the secondary dwelling unit on the Property that is
depicted in Exhibit B and that is reserved for occupancy at a Qualifying Rent in
accordance with and as set forth in Section 2.
Secondary Unit Regulatory Agreement May 7, 2007
Page 2 of 10
K:\Inclusionary DevelopmentslCantara @ Positano\Marketing-Outreach Materials\Positano Second Unit
Regulatory Agreement 07-30-10.DOC
~/ ~ ~
~
2. Use and Affordabilitv Restrictions. Owner represents and warrants that it has not
entered into any agreement that would restrict or compromise its ability to comply with
the occupancy and affordability rn{oranl~ aS reeement that is ngons stent wi h~such r
covenants that it shafl not enter i y 9
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 Re ~ n all leases a d coln~t acts wi h te~lants ~Wner
shall ensure that language is containe
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 IQ hallybe den ed co~tfintued oc~cupancy of heing,
no tenant qualifying for a Restricted Un
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 Housinq Laws• 4wner shall not
discriminate against persons or groups of persons on account of race, color, religion,
creed, sex, sexual orientation, marital status, familial status, ancestry or national origin
in the lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property,
nor shall Owner or any person claiming under or through Owner establish or permit any
such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the Property. Owner shall each ensure that language
prohibiting such discrimination shall be included in all deeds, leases and contracts
executed by Owner or its successors and assigns with respect to the Property. Owner
shall comply with state and federal fair housing laws in the marketing and rental of the
units in the Property.
3. Reportinq Requirements.
3.1 Tenant Verification. Owner or its authorized agent shall 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 "Written Verification"):
~ (a) Number of people in the household; and
(b) Total household income.
Owner or its authorized agent shall retain Written Verification for not less than three (3)
years, and upon City's request, shall make the Written Verification available for
inspection by City and shall provide copies of the Written Verification to City. Owner or
its authorized agent may require each Eligible Household to certify the Written
Verification. May 7, 2007
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3.2 Annual Report~ Inspections. Owner shall submit an annual report
("Annual Report") to the City in conformity with the requirements of Section 8.68.050.B
of the Inclusionary Zoning Regulations, together with a certification that the Property is
in compliance with the requirements of this Agreement. The Annual Report shall, at a
minimum, include the following information: (i) identification of the Restricted Unit by
address; (ii) the monthly rents charged and proposed to be charged; (v) the number of
people residing in the unit; and (vi) the total household inco of theeWtltten Verp~ atio'tn S
request, Owner shall include with the Annual Report, a copy
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 Aqreement.
4.1 Term of Restrictions. This Agreement shall remain in effect in perpetuity.
4.2 Effectiveness Succeed {n full team hereofr egardlesslo ag y salent shall
remain effective and fully binding fo
assignment, transfer, or conveyance of the Property, unless this Agreement is
terminated earlier by City in a recorded writing.
4.3 Reconvevance. Upon the termination ofo release and dischha ge the terms
agree to execute and record appropriate instruments t
of this Agreement; provided, however, the execution and recordation of such
instruments shall not be necessary or a prerequisite to the termination of this
Agreement in accordance with its terms.
5. Bindin U on Successors• Covenants to Run with the Land. Owner hereby
subjects its interest in the Property to the covenants and restrictions set forth in this
Agreement. The City and Owner hereby declare their express intent that the covenants
and restrictions set forth herein shall be deemed covenants running with the land and
shall be binding upon and inure to the benefit of the heirs, administrators, executors,
successors in interest, transferees, and assigns of Owner and City, regardless of any
sale, assignment, conveyance or transfer of the Property or any part thereof or interest
therein. Each reference in this Agreement to a specifically named party shall be
deemed to mean a reference to the successor of each such Party. Any successor-in-
interest to Owner, including without limitation any purchaser, transferee or lessee of the
Property (other than the tenants of the individual dwelling units within the Property) shall
be subject to all of the duties and obligations imposed hereby for the full term of this
Agreement. Each and every contract, deed, ground lease or other instrument affecting
or conveying the Property or any part thereof, shall conclusively be held to have been
executed, delivered and accepted~1e b~ oftwhe her such covenantstl estric~tiolns, du~ties
obligations set forth herein, rega
and obligations are set forth in such contract, deed, ground lease or other instrument. If
May 7, 2007
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any such contract, deed, ground lease or other instrument has been executed prior to
the date hereof, Owner hereby covenants to obtain and deliver to City an instrument in
recordable form signed by the parties to such contract, deed, ground lease or other
instrument pursuant to which such parties acknowledge and accept this Agreement and
agree to be bound hereby.
Owner agrees for itself and for its successors that in the event that a court of
competent jurisdiction determines that the covenants herein do not run with the land,
such covenants shall be enforced as equitable servitudes against the Property in favor
of City.
6. Property Manaqement• Repair and Maintenance; Marketinq.
6.1 Manaqement Responsibilities. Owner shall be responsible for all
management functions with respect to the Property, including without limitation the
selection of tenants, certification and recertification of household income and eligibility,
evictions, collection of rents and deposits, maintenance, landscaping, routine and
extraordinary repairs, replacement of capital items, and security. Except as City may
otherwise agree in writing, City shall have no responsibility for management or
maintenance of the Property. The contracting of management services to a
management entity shall not relieve Owner of its primary responsibility for proper
performance of management duties.
6.2 Intentionally Omitted.
6.3 Repair Maintenance and SecuritV. Throughout the term of this
Agreement, Owner shall at its own expense, maintain the Property in good physical
condition, in good repair, and in decent, safe, sanitary, habitable and tenantable living
conditions in conformity with all applicable state, federal, and local laws, ordinances,
codes, and regulations. Without limiting the foregoing, Owner agrees to maintain the
Property (including without limitation, the residential units, common areas, landscaping,
driveways and walkways) in a condition free of all waste, nuisance, debris,
unmaintained landscaping, graffiti, disrepair, abandoned vehicles/appliances, and 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.
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6.8 Property Damaqe or Destruction. If any part of the Property is damaged
or destroyed, Owner shall repair or restore the same as soon as practicable, consistent
with the occupancy and rent restriction requirements set forth in this Agreement.
7. Recordation; No Subordination. This Agreement shall be recorded in the Official
Records of Alameda County. Owner hereby represents, warrants and covenants that
with the exception of easements and restrictions of record, absent the written consent of
City, this Agreement shall not be subordinated in priority to any lien (other than those
pertaining to taxes or assessments), encumbrance, or other interest in the Property. If
at the time this Agreement is recorded, any interest, lien, or encumbrance has been
recorded against the Property in position superior to this Agreement, upon the request
of City, Owner hereby covenants and agrees to promptly undertake all action necessary
to clear such matter from title or to subordinate such interest to this Agreement
consistent with the intent of and in accordance with this Section, and to provide such
evidence thereof as City may reasonably request.
8. Transfer and Encumbrance.
8.1 Restrictions on Transfer. During the term of this Agreement, except as
permitted pursuant to this Agreement, Owner shall not make or permit the occurrence of
any conveyance, sale or lease (except as to individual dwelling units) of the Property
without the prior written consent of the City; provided however City 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 cur~
any default by Owner within the same period of time provided to Owner for such cure,
extended by an additional thirty (30) days.
8.3 Mortqaqee Protection. No violation of any provision contained herein shall
defeat or render invalid the lien of any mortgage or deed of trust made in good faith and
for value upon all or any portion of the Property, and the purchaser at any trustee's sale
or foreclosure sale shall not be liable for any violation of any provision hereof occurring
prior to the acquisition of title by such purchaser. Such purchaser shall be bound by
and subject to this Agreement from and after such trustee's sale or foreclosure sale.
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Promptly upon determining that a violation of this Agreement has occurred, Gity shall
give written notice to the holders of record of any mortgages or deeds of trust
encumbering the Property that such violation has occurred.
9. Default and Remedies.
9.1 Events of Default. Owner's failure to cure any default in performance of
Owner's obligations under this Agreement within thirty (30) days following City's delivery
of a notice of default shall constitute an Event of Default hereunder and shall entitle the
City to proceed with any of the remedies described below. Notwithstanding the
foregoing, if the default is such that it is not reasonably capable of being cured within
thirty (30) days, an Event of Default shall not arise hereunder if Owner commences to
cure the default within 30 days and thereafter prosecutes the curing of such default to
completion with due diligence and in good faith, but in no event later than ninety (90)
days after receipt of City's notice of default or such longer period as City may agree to
in writing.
(a) Bring an action for 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 obligafion
required by this Agreement; or (ii) any act or omission by Owner, or any of Owner's
contractors, subcontractors, agents, employees, licensees or suppliers related to the
Property, except to the extent arising from the gross negligence or willful misconduct of
such Indemnified Party. The provisions of this Section shall survive the expiration or
earlier termination of this Agreement.
11. Miscellaneous.
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11.1 Amendments. This Agreement may be amended or modified only by a
written instrument signed by both Parties.
11.2 No Waiver. Any waiver by City of any term or provision of this Agreement
must be in writing. No waiver shall be implied from any delay or failure by City to take
action on any breach or default hereunder or to pursue any remedy allowed under this
Agreement or applicable law. No failure or delay by City at any time to require strict
performance by Owner of any provision of this Agreement or to exercise any election
contained herein or any right, power or remedy hereunder shall be construed as a
waiver of any other provision or any succeeding breach of the same or any other
provision hereof or a relinquishment for the future of such election.
11.3 Notices. Except as otherwise specified herein, all notices to be sent
pursuant to this Agreement shall be made in writing, and sent to the Parties at their
respective addresses specified below or to such other address as a Party may
designate by written notice delivered to the other parties in accordance with this
Section. All such notices shall be sent by: ~
(a) personal delivery, in which case notice is effective upon delivery;
(b) certified or registered mail, return receipt requested, in which case
notice 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
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11.4 Further Assurances. The Parties shall execute, acknowledge and deliver
to the other such other documents and instruments, and take such other actions, as
either shall reasonably request as may be necessary to carry out the intent of this
Agreement.
11.5 Parties Not Co-Venturers. Nothing in this Agreement is intended to or
shall establish the Parties as partners, co-venturers, or principal and agent with one
another.
11.6 Action 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, Emplovees and Aqents. No
member, official, employee or agent of the City shall be personally liable to Owner or
any successor in interest, in the event of any default or breach by the City, or for any
amount of money which may become due to Owner or its successor or for any
obligation of City under this Agreement.
11.8 Headinqs; Construction. The headings of the sections and paragraphs of
this Agreement are for conveniehce only and shall not be used to interpret this
Agreement. The language of this Agreement shall be construed as a whole according
to its fair meaning and not strictly for or against any Party.
11.9 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
11.10 Governinq 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 Severabilitv. If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality, and
enforceability of the remaining provisions shall not be affected or impaired thereby.
11.13 Entire Aqreement; 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.
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11.14 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original and all of which together shall constitute one
agreement.
S/GNATURES ON FOLLOW/NG PAGE.
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IN WITNESS WHEREOF, the Parties have executed this Agreement effective as
of the date first written above.
OWNER
CITY OF DUBLIN
By:
Joni Pattillo
City Manager
Attest:
Gaylene Burkett
Deputy City Clerk
SIGNATURES MUST BE NOTARIZED.
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~r,~~ ~'E''~ ~ ~ ;•
g,.
Exhibit A
PROPERTY DESCRIPTION
(Attach legal description.)
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Exhibit B
DIAGRAM SHOWING LOCATION OF RESTRICTED UNIT
(Attach diagram.)
5 ~ ~" ~
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Exhibit C
ANNUAL REPORT FORM
(Attach Form.)
/ / t~~
RECORDING REQUESTED BY:
CITY OF DUBLIN
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Waived per GC 27383
Space above this line for Recorder's use
MEMORANDUM OF AMENDED AND RESTATED
SUBSEQUENT AFFORDABLE HOUSING AGREEMENT
FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES
IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS
Dublin RE Investors, LLC and Braddock and Logan Group II, L.P.
Subsequent Phase (627 Residential Lots) of the Positano Project
This Memorandum of Subsequent Affordable Housing Agreement for the Construction of
Inclusionary Units and the Payment of Fees In-Lieu of Constructing Inclusionary Units (this
"Memorandum") is entered into on this day of , 2010, by and between the City of
Dublin, a municipal corporation (hereafter "Cit}~') and Dublin RE Investors, LLC, a California
limited liability company, and Braddock & Logan Group II, L.P., a California limited partnership
(collectively, "the Developer").
1. Pursuant to the Amended and Restated Subsequent Affordable Housing
Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of
Constructing Inclusionary Housing Units, dated as of , 2010, by and between
City and Developer (the "Agreement"), the Parties have set forth their respective obligations
with respect to the provision of affordable units on lands presently owned by Developer, a
portion of the 1043 residential parcel Positano Project (the "Project") , and more specifically
described in Exhibit A(the "Property"). These obligations run with the land.
2. The City and the Developer are parties to a certain Affordable Housing
Agreement that sets out the specific obligations for the construction of Inclusionary Units and
payment of fees in lieu thereof in conjunction with the a 416 residential parcel phase of the
Project ("the Initial Agreement"). The Initial Agreement anticipates the parties entering into a
subsequent affordable housing agreement setting forth the manner in which the Regulations will
be complied with for the remainder of the Project.
Exhibit 6
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3. The Agreement sets out the specific obligations for the construction of
Inclusionary Units and payment of fees in lieu thereof in conjunction with a subsequent 627
residential parcel phase of the development of the Project. The Agreement also obligates the
Developer to make a Community Benefit Payment, as described in the Agreement, prior to
issuance of building permits for each residential unit (excepting Second Units) within the
Subsequent Phase.
4. Developer and City have executed and recorded this instrument to give notice of
the Agreement, and the respective rights and obligations of Developer and City. The
unrecorded Subsequent Affordable Housing Agreement for the Construction of Inclusionary
Units and Payment of Fees in Lieu of Constructing Inclusionary Housing Units is incorporated
by reference in its entirety in this Memorandum.
5. This Memorandum shall bind and inure to the benefit of the parties and their
respective heirs, successors and assigns, subject however to restrictions set forth in the
Agreement regarding assignment.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
CITY OF DUBLIN
By:
Joni Pattillo, City Manager
Attest:
Caroline Soto, City Clerk
Approved as to form
John Bakker, City Attorney
DUBLIN RE INVESTORS, LLC
a California limited liability company
By: Braddock and Logan Services, Inc.
a California corporation
Its Manager
By: ~
Name ~s-~~ ~ ~ 2y~ 4t
Its: ~~y.~L,,~¢-
BRADDOCK & LOGAN GROUP II, L.P.
A California limited partnership
By: Braddock and Logan Services, Inc.
a California corporation
Its General Partner
By: ~,
Nam : asY4 ~ ~.P L.~
Its: ~~~~~~,~