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HomeMy WebLinkAboutItem 4.05 Anderson Prop DA~~ ~ ~\ -~~~ 1 ~/ \~ CITY CLERK File # ^~^~-~~ ..LlrUxl~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: November 18, 2008 SUBJECT: CONSENT CALENDAR - PA 07-037 Anderson Development Agreement -Development Agreement for the 108-unit apartment project on the northern 7 acres of the Anderson property. Report Prepared by Jeff Baker, Senior Planner ATTACHMENTS: 1) Ordinance approving a Development Agreement between the City of Dublin and Dublin RE Investors LLC for the northern 7- acres of the Anderson property, with the Development Agreement included as Exhibit A. 2) City Council Staff Report dated November 4, 2008, without attachments. RECOMMENDATION: Waive the second reading and adopt the Ordinance approving a ~~ Development Agreement between the City of Dublin and Dublin RE Investors LLC for the northern 7-acres of the Anderson property. FINANCIAL STATEMENT: None. DESCRIPTION: Background 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 1 to the right). Braddock & Logan has received approval of a Site Development Review to construct a 108-unit apartment project consisting of 82 affordable units (including 78 units to satisfy a portion of the Inclusionary Zoning obligation for Positano and 4 units to satisfy the Inclusionary Zoning obligation for the Anderson property); 25 market rate units; and 1 manager's unit on the northern 7 acres of the Anderson property. Development Agreement Map 1: Anderson Vicinity Map --------------------------------------------------------------------------------------------------------------------------------- COPY TO: Jeff Lawrence, Braddock & Logan ITEM NO. • Page 1 of 2 G.' IPA#1200 710 7-03 7 Anderson GPA SPA PD SDRIDevelopment AgreementlCCSR DA 11.18.08 2nd reading.doc The Eastern Dublin Specific Plan requires all applicants for development within the Specific Plan area to enter into a Development Agreement. Additionally, Condition 98 of the approved Site Development Review for the 108-unit apartment project on the Anderson property further requires the Applicant to enter into a Development Agreement prior to issuance of a Grading Permit or Building Permit for the project (Resolution 08-04). Therefore, Staff has prepared a Development Agreement for the Anderson property, which is included in Attachment 1, Exhibit A of this Staff Report. Development Agreements are adopted by Ordinance. The adoption of an Ordinance requires two readings before the City Council. On November 4, 2008, the City Council conducted a Public Hearing, waived the first reading and introduced an Ordinance which would approve the Development Agreement between the City and Dublin RE Investors LLC. Please refer to the City Council Staff Report and Minutes (Attachment 2) for additional information. The City Council is currently requested to hold the second reading and adopt the proposed Ordinance. RECOMMENDATION: Staff recommends that the City Council waive the second reading and adopt the Ordinance approving a Development Agreement between the City of Dublin and Dublin RE Investors LLC for the northern 7 acres of the Anderson property. Page 2 of 2 i ~~~ ORDINANCE NO. XX - 08 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN RE INVESTORS LLC FOR THE NORTHERN 7 ACRES OF THE ANDERSON PROPERTY (APN 905-0006-001) PA 07-037 THE CITY COUNCIL OF THE CITY OF DUBLIN DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. RECITALS A. The Anderson property is located north of Interstate 580 and east of Croak Road near the eastern City limits and is included within the Eastern Dublin Specific Plan (EDSP) and Fallon Village. The northern 7 acres of the. Anderson property, referred to herein as the "Project," is the subject of the proposed Development Agreement. B. A Development Agreement between the City of Dublin and Dublin RE Investors LLC ("Developer") has been presented to the City Council, Exhibit A, attached hereto. C. An Initial .Study prepared by City Staff concluded that the 108-unit apartment project on the northern 7 acres of the Anderson property could not have a significant effect on the environment beyond those already studied, and no significant information arose for the Project during the preparation of this Initial Study that would require further environmental review. On March 4, 2008, the City Council adopted a CEQA Addendum, and Statement of Overriding Considerations (Resolution 36-08), to prior environmental documentation including: 1) the Eastern Dublin Environmental Impact Report (EIR), a program EIR, initially certified by the City Council on May 10, 1993 (Resolution 53-93) (SCH#91103064); 2) the East Dublin Property Owners Supplement EIR (SEIR) (SCH # 2001052114) certified by the City Council on April 2, 2002 (Resolution 40-02); and 3) the Fallon Village SEIR (SCH #2005062010) certified by the City Council on December 6, 2005 (Resolution No. 222-OS). D. A public hearing on the proposed Development Agreement was held before the Planning Commission on October 14, 2008, for which public notice was given as provided by law. E. The Planning Commission has, by Resolution 08-26, recommended that the City Council approve the Development Agreement. F. A public hearing on .the proposed Development Agreement was held before the City Council on November 4, 2008 for which public notice was given as provided by law. G. The City Council has considered the recommendation of the Planning Commission, including the Planning Commission's reasons for its recommendation, the Agenda Statement, all comments received in writing, and all testimony received at the public hearing. ~..,~~ty• 5 ~Ili8~~8 AttarhmPnt 1 SECTION 2. FINDINGS AND DETERMINATIONS a~~~ Therefore, on the basis of: (a) the foregoing Recitals which are incorporated herein, (b) the City of Dublin General Plan, (c) the Eastern Dublin Specific Plan, (d) the Program EIR for the Eastern Dublin Specific Plan (SCH SCH#91103064), (e) the EDPO Supplemental EIR (SEIR) (SCH # 2001052114), (f) the Fallon Village SEIR (SCH#2005062010), (g) the CEQA Addendum to the previous environmental reviews adopted by City Council on March 4, 2008 (Resolution 36-08, (i) the Agenda Statement, and on the basis of the specific conclusions set forth below, the City Council finds and determines that: The Development Agreement is consistent with the objectives, policies, general land uses and programs specified and contained in the City's General Plan and in the Eastern Dublin Specific Plan in that: (a) the General Plan and Eastern Dublin Specific Plan land use designation for the Site is Medium-High Density Residential, (b) the proposed project is consistent with the designated land use, (c) the Project is consistent with the fiscal policies of the General Plan and Specific Plan with respect to the provision of infrastructure and public services, and (d) the Development Agreement includes provisions relating to vesting of development rights, and similar provisions set forth in the Specific Plan. 2. The Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use districts in which the real property is located in that the project approvals include Planned Development Zoning with an approved Stage 1 and Stage 2 Development Plan, and Site Development Review approval fora 108-unit apartment project. 3. The Development Agreement is in conformity with public convenience, general welfare, and good land use policies in that the Developer's project will implement land use guidelines set forth in the Eastern Dublin Specific Plan and the General Plan which have planned for Medium-High Density Residential uses at this location. 4. The Development Agreement will not be detrimental to the health, safety and general welfare in that the Developer's project will proceed in accordance with all the programs and policies of the Eastern Dublin Specific Plan. The Development Agreement will not adversely affect the orderly development of property or the preservation of property values in that the Project will be consistent with the General Plan and with the Eastern Dublin Specific Plan. SECTION 3. APPROVAL The City Council hereby approves the Development Agreement (Exhibit A) and authorizes the Mayor to execute it. SECTION 4. RECORDATION Within ten (10) days after the Development Agreement is fully executed by all parties, the City Clerk shall submit the Agreement to the County Recorder for recordation. 2 ~~ SECTION 5. EFFECTIVE DATE AND POSTING OF ORDINANCE This Ordinance shall take effect and be in force thirty (30) days from and after the date of its passage. The City Clerk of the City of Dublin shall cause the Ordinance to be posted in at least three (3) public places in the City of Dublin, in accordance with Section 36933 of the Government Code of the State of California. PASSED AND ADOPTED BY the City Council of the City of Dublin, on this 18th day of November, 2008 by the following votes: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk G.•IPA#1200 710 7-03 7 Anderson GPA SPA PD SDRIDevelopmentAgreementlCC Ord Anderson DA.doc 3 ~~3~, 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 DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DUBLIN AND DUBLIN RE INVESTORS, LLC FOR THE ANDERSON RESIDENTIAL PROJECT Exhibit A Attachment 1 5 0~ 3'~ THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered in the City of Dublin on this day of , 2008, by and between the City of Dublin, a Municipal Corporation (hereafter "the City"), and Dublin RE Investors, L.L.C., a California limited liability corporation (hereafter "Developer"), pursuant to the authority of §§ 65864 et seq. of the California Government Code and Dublin Municipal Code, Chapter 8.56. RECITALS A: California Government Code §§ 65864 et seq. and Chapter 8.56 of the Dublin Municipal Code (hereafter "Chapter 8.56") authorize the City to enter into an agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and B. DEVELOPER desires to develop and holds legal interest in certain real property consisting of approximately 7 acres of land, located in the City of Dublin, County of Alameda, State of California, which is more particularly described in Exhibit A attached hereto and incorporated herein by this reference, and which real property is hereafter called the "Pro.pert~'; and C. The City Council adopted the Eastern Dublin Specific Plan by Resolution No. 53-93 which Plan is applicable to the Property; and D. The Eastern Dublin Specific Plan requires Developer to enter into this development agreement; and E. Developer proposes the development of the Property with 108 residential units and various non-residential uses including open space and private recreation facilities, storm water management elements and associated public and private rights-of-way (the "Project"); and F. Developer has applied for, and the City has approved various land use approvals in connection with the development of the Project, including a General Plan Amendment (City Council Resolution 37-08), an Eastern Dublin Specific Plan Amendment (City Council Resolution 37-08), a Stage 1 Development Plan (Ordinance No. 13-08), a Stage 2 Development Plan (Ordinance 13-08), and Site Development Review (Planning Commission Resolution No. 08-04) (collectively, together with any approvals or permits now or hereafter issued with respect to the Project, the "Project Approvals"); and G. Development of the Property by Developer may be subject to certain future discretionary approvals, which, if granted, shall automatically Dublin/Dublin RE Investors Development Agreement Page 2 of 16 For the Anderson Residential Project 1045745 9.DOC 6 ~ `3~ . become part of the Project Approvals as each such approval becomes effective; and H. The City desires the timely, efficient, orderly and proper development of said Project; and L The City Council has found that, among other things, this Agreement is consistent with its General Plan and .the Eastern Dublin Specific Plan as amended by City Council Resolution 37-08, and has been reviewed and evaluated. in accordance with Chapter 8.56; and J. The City and Developer have reached agreement and desire to express herein a development agreement that will facilitate development of the Project subject to conditions set forth herein; and K. On , 2008, the City Council of the City of Dublin adopted Ordinance No. approving this Agreement. The ordinance took effect on , 2008 ("the Approval Date"): NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, the City and Developer agree as follows: AGREEMENT 1. Description of Propefii. The Property that is the subject of this Agreement is described in Exhibit A attached hereto. 2. Interest of Developer. The Developer has a legal'or equitable interest in the Property in that it holds a right to purchase the property. 3. Relationship of City and Developer. It is understood that this Agreement is a contract that has been negotiated and voluntarily entered into by the City and Developer and that the Developer is not an agent of the City. The City and Developer hereby renounce the existence of any form of joint venture or partnership between them, arid agree that nothing contained herein or in any document executed in connection herewith shall be construed as making the City and Developer joint venturers or partners. Dublin/Dublin RE Investors Development Agreement Page 3 of 16 For the Anderson Residential Project ~~~~ 4. Effective Date and Term. 4.1. Effective Date. The effective date of this Agreement shall be the Approval Date. 4.2. Term. The term of this Agreement shall commence on the Effective Date and extend five (5) years thereafter, unless said term is otherwise terminated or modified by circumstances set forth in this Agreement. 5. Use of the Property. 5.1. Right to Develop. Developer shall have the vested right to develop the Project on the Property in accordance with the terms and conditions of this Agreement, the Project Approvals (as and when issued), and any amendments to any of them as shall, from time to time, be approved pursuant to this Agreement (such amendments once effective shall become part of the law Developer is vested into without an additional amendment of this Agreement).. 5.2. Permitted Uses. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, provisions for reservation or dedication of land for public purposes and location and maintenance of on-site and off-site improvements, location of public utilities (operated by the City) and other terms and conditions of development applicable to the Property, shall be those set forth in this. Agreement, the Project Approvals and any amendments to this Agreement or the. Project Approvals. 5.3. Additional Conditions. Provisions for the following ("Additional Conditions°) are set forth in Exhibit B attached hereto and incorporated herein by reference. 5.3.1. Subsequent Discretionary Approvals. Conditions, terms, restrictions, and requirements for subsequent discretionary actions. (These conditions do not affect Developer's responsibility to obtain all other land use approvals required by the ordinances of the City of Dublin other approvals from regulatory agencies.) Not Applicable 5.3.2. Mitigation Conditions. Additional or modified conditions agreed upon by the parties in order to eliminate or mitigate adverse environmental impacts of the Project or otherwise relating to development ' of the Project. See Exhibit B Dublin/Dublin RE Investors Development Agreement Page 4 of 16 For the Anderson Residential Project a ~ 3~ 5.3.3. Phasing, Timing. Provisions that the Project be constructed in specified phases, that construction shall commence within a specified time, and that the Project or any phase thereof be completed within a specified time. See Exhibit B 5.3.4. Financing Plan. Financial plans which identify necessary capital improvements such as streets Arid utilities and sources of funding. See Exhibit B 5.3.5: Fees, Dedications. Terms relating to payment of fees or dedication of property. See Exhibit B 5.3.6. Reimbursement. Terms relating to subsequent reimbursement over time for financing of necessary public facilities. See Exhibit B 5.3.7. Miscellaneous. Miscellaneous terms. See Exhibit B 6. Applicable Rules, Regulations and Official Policies. 6.1. Rules re Permitted Uses. For the term of this Agreement, the City's ordinances, resolutions, rules, regulations and official policies governing, the permitted uses of the Property, governing density and intensity of use of the Property and the maximum height, bulk and size of proposed buildings shall be those in force and effect on the Effective Date of the Agreement. 6.2. Rules re Design and Construction. Unless otherwise expressly provided in Paragraph 5 of this Agreement, the ordinances, resolutions, rules, regulations and official policies governing design, improvement and construction standards and specifications applicable to the Project shall be those in force and effect at the time of the applicable discretionary approval, whether the date of that approval is prior to or after the date of this Agreement. Ordinances, resolutions, rules, regulations and official policies governing design., improvement and. construction standards and specifications applicable to public improvements to be constructed by Developer shall be those in force and effect at the time of the applicable discretionary approval, whether date of approval is prior to or after the date of this Agreement. Dublin/Dublin RE Investors Development Agreement Page 5 of 16 For the Anderson Residential Project 9~'9 6.3. Uniform Codes Applicable. Unless expressly provided in Paragraph 5 of this Agreement, the Project shall be constructed in. accordance with the provisions of the Uniform Building, Mechanical, Plumbing, Electrical and Fire Codes and Title 24 of the California. Code of Regulations, relating to Building Standards, in effect at the time of approval of the appropriate building, grading, or other construction permits for the Project. 7. Subsequently Enacted Rules and Regulations. 7.1. New Rules and Regulations. During the term of this Agreement, the City may apply new or modified ordinances, resolutions, rules, regulations and official policies of the City to the Property which were not in force and effect on the Effective Date of this Agreement and which are not in conflict with those applicable to the Property as set forth in this Agreement if: (a) the application of such new or modified ordinances, resolutions, rules, regulations or official policies would not prevent, impose a substantial financial burden on, or materially delay development of the Property as contemplated by this Agreement and the Project Approvals and (b) if such ordinances, resolutions, rules, regulations or official policies have general applicability. 7.2. Approval of Application. Nothing in this.Agreement shall prevent the City from denying or conditionally approving any subsequent land use permit or authorization for the Project on the basis of such new or modified ordinances, resolutions, rules, regulations and policies except that such subsequent actions shall be subject to any conditions, terms, restrictions, and requirements expressly set forth herein. 7.3. Moratorium Not Applicable. Notwithstanding anything to the contrary contained herein, in the event an ordinance, resolution or other measure is enacted, whether by action of the City, by initiative, referendum, or.otherwise, that imposes a building moratorium, a limit on the rate of development or a voter- approval requirement which affects the Project on all or any part of the Property, the City agrees that such ordinance, resolution or other measure shall not apply to the Project, the Property, this Agreement or the Project Approvals unless the building moratorium is imposed as part of a declaration of a local emergency or state of emergency as defined in Government Code § 8558. 8. Subsequently Enacted or Revised Fees, Assessments and Taxes. 8.1. Fees, Exactions. Dedications The City and Developer agree that the fees payable and exactions required in connection with the development of the Project for purposes of mitigating environmental and other impacts of the Project, providing infrastructure for the Project and complying with the Specific Plan shall be those set forth in the Project Approvals and in this Agreement Dublin/Dublin RE Investors Development Agreement Page 6 of 16 For the Anderson Residential Project ~o ~~~ (including Exhibit B . The City shall not impose or require payment of any other fees, dedications of land, ~or construction of any public improvement or facilities, shall not increase or accelerate existing fees, dedications of land or construction of public improvements, or impose other exactions in connection with any subsequent discretionary approval for the Property, except as set forth in the Project Approvals and this Agreement (including Exhibit B, subparagraph 5.3.5). 8.2. Revised Application. Fees. Any existing application, processing and inspection fees that are revised during the term of this Agreement shall apply to the Project provided that (1) such fees have general applicability; (2) the application of such fees to the Property is prospective only; and (3) the application of such fees would not prevent, impose a substantial financial burden on,, or materially delay. development in accordance with this Agreement. Developer does not waive its right to challenge the legality of any such fees under the controlling law then in place. 8:3. New Taxes. Any subsequently enacted city-wide taxes shall apply to the Project provided that: (1) the application. of such taxes to the Property is prospective; and (2} the application of such taxes would not prevent development in accordance with this Agreement. Developer does. not waive its right to challenge the legality of any such taxes under the controlling law then in place. 8.4. Assessments. Nothing herein shall be construed to relieve the Property from assessments levied against it by the City pursuant to any statutory procedure for the assessment of property to pay for infrastructure and/or services which benefit the Property. 8.5. Vote on Future Assessments and Fees. In the event that any assessment, fee or charge which is applicable to the Property is subject to Article XIIID of the Constitution and Developer does not return its ballot, Developer agrees; on behalf of itself and its successors, that the City may count Developer's ballot as afFrmatively voting in favor of such assessment, fee or charge. 9. ~ Amendment or Cancellation. 9.1. Modification Because of Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the Effective Date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall meet and confer in good faith in a reasonable attempt to modify this Agreement to comply with such federal or state law or regulation. Any such amendment or suspension of the Agreement shall be subject to approval by the City Council in accordance with Chapter 8.56. Dublin/Dublin RE Investors Development Agreement Page 7 of 16 For the Anderson Residential Project i~~~~ - 9.2. Amendment by Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the parties hereto and in - accordance with the procedures of State law and Chapter 8.56. 9.3. Insubstantial Amendments. Notwithstanding the provisions of the preceding paragraph 9.2,.any amendments to this Agreement which do not relate to (a) the term of the Agreement as provided in paragraph 4.2; (b) the permitted uses of the Property as provided in paragraph 5.2; (c) provisions for "significant" reservation or dedication of Land as provided in Exhibit B; (d) conditions, terms, restrictions or requirements for subsequent discretionary actions; (e) the density or intensity of use of the Project; (f) the maximum -height or size of proposed buildings; or (g) monetary contributions by Developer as provided in this Agreement, shall not, except to the extent otherwise required by law, require notice or public hearing before either the Planning Commission or the City Council before the parties may execute an amendment hereto. The City's Public Works Director shall determine whether a reservation or dedication is "significant". 9.4. Amendment of Proiect Approvals. Any amendment of Project Approvals relating to: (a) the permitted use of the Property; (b) provision for reservation or dedication of land; (c) conditions, terms, restrictions or requirements for subsequent discretionary actions; (d) the density or intensity of use of the Project; (e) the maximum height or size of proposed buildings; (f) monetary contributions by the Developer; or (g) public improvements to be constructed by Developer shall require an amendment of~this Agreement. Such amendment shall be limited to those provisions of this Agreement which are implicated by the amendment of the Project Approval. Any other amendment of the Project Approvals, or any of them, shall not require amendment of this Agreement unless the amendment of the Project Approval(s) relates specifically to some provision of this Agreement. 9.5. Cancellation by Mutual Consent. Except as otherwise permitted herein, this Agreement~may be canceled in whole or in part only by the mutual consent. of the parties or their successors in interest, ~in accordance with the provisions of Chapter 8.56. Any fees paid pursuant to Paragraph 5.3 and Exhibit B of this Agreement prior to the date of cancellation shall be retained by the City. 10. Term of Proiect Approvals. 10.1. Pursuant to California Government Code Section 66452.6(a), the term of the vesting tentative map described in Recital F above shall automatically be extended for the term of this Agreement. The term of any other Project Approval shall be extended only if so provided in Exhibit B. 11. Annual Review. Dublin/Dublin RE Investors Development Agreement Page 8 of 1fi For the Anderson Residential Project ~a ~ 3~ 11..1. Review Date. The annual review date for this Agreement shall be between July 15 and August 15, 2009 and, thereafter between each Juty 1.5 and August 15 during the Term. 11.2. Initiation of Review. -The City's Community Development Director shall initiate the annual review, as required under Section 8.56.140 of Chapter 8.56, by giving to Developer thirty (30) days' written notice that the City intends to undertake such review. Developer shall provide evidence to the Community Development Director prior to the hearing on the annual review, as and when reasonably determined necessary by the Community Development Director, to demonstrate good faith compliance with the provisions of the Agreement. The burden of proof by substantial evidence of compliance is upon the Developer. 11.3. Staff Reports. To the extent practical, the City shall deposit in the mail and fax to Developer a copy of all staff reports, and related exhibits concerning contract performance at least five (5) days prior to any annual review. 11:4. Costs. Costs reasonably incurred by the City in connection with the annual review shall be paid by Developer in accordance with the City's schedule of fees in effect at the time of review. 12. Default. 12.1. Other Remedies Available. Upon the occurrence of an event of default; the parties may pursue all other remedies at law or in equity which are not otherwise provided for in this Agreement or in the City's regulations governing development agreements, expressly. including the remedy of specific performance of this Agreement. 12.2. Notice and Cure. Upon the occurrence of an event of default by either party, the nondefaulting party shall sgrve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of such notice of default, the nondefaulting party may then commence any legal or equitable action to enforce its rights under this Agreement; provided, however, that if the .default cannot be cured within such thirty (30) day period, the nondefaulting party shall. refrain from any such legal or equitable action so long as the defaulting party begins to cure such defaulf within such thirty (30) day period and diligently pursues such cure to completion. Failure to give notice shall not constitute a waiver of any default. 12.3. No Damages Against City. Notwithstanding anything to the contrary contained herein, in no event shall damages be awarded against the City upon an event of default or upon termination of this Agreement. Dublin/Dublin RE Investors Development Agreement Page 9 of 16 For the Anderson Residential Protect i~ ~~~ 13. Estoppel Certificate. .13.1. Either party may, at any time, and from time to time, request written notice from the other party requesting such party to certify in writing that, (a) this Agreement is in full force and effect and a binding obligation of the parties, (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, and (c) to the knowledge of the certifying party the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, to describe therein the nature and amount of any such defaults. A party. receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof, or such longer period as may reasonably be agreed to by the .parties. City Manager of the City shall be authorized to execute any certificate requested by Developer. Should the party receiving the request not execute and return such certificate within the applicable period, this shall not be deemed to be a default, provided that such party shall be deemed to have certified that the statements in clauses (a) through (c) of this section are true, and any party may rely on such deemed certification. 14. Mortgagee Protection; Certain Rights of Cure. 14.1. Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property, or any portion thereof after the date of recording this Agreement, including the lien for any deed of trust or mortgage ("Mortgage"). Notwithstanding the foregoing, no breach hereof-shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all the terms and conditions contained, in this Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise. 14.2. Mortgagee Not Obligated. Notwithstanding the_ provisions of Section 14.1 above, no Mortgagee shall have any obligation or duty under this Agreement, before or after foreclosure or a deed in lieu of foreclosure, to construct or complete the construction of improvements, or to guarantee such construction of improvements, or to guarantee such construction or completion, or to pay, perform or provide any fee, dedication, improvements or other exaction or imposition; provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by the Project Approvals or by this Agreement. 14.3. Notice of Default to Mortgagee and Extension of Right to Cure. If the City receives notice from a Mortgagee requesting a copy of any notice of Dublin/Dublin RE Investors Development Agreement Page 10 of 16 For the Anderson Residential Project i~+~3q default given Developer hereunder. and specifying the address for service thereof, then the City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by the City that Developer has committed an event of default. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed set forth in the City's notice. The City, through its City Manager, may extend the thirty-day cure period provided in paragraph 12.2 for not more than an additional sixty (60) days upon request of Developer or a Mortgagee. •15. Severability. 15.1. The unenforceability, invalidity or illegality of any provisions, covenant, condition or term of this Agreement shall not render the other provisions unenforceable, invalid or illegal. 16. Attorneys' Fees and Costs. 16.1. If the City or Developer initiates any action at law or in equity to enforce or interpret the terms and conditions of.this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs in addition to any other relief to which it may~otherwise be entitled. If any person or entity not a party to this Agreement initiates an action at law or in equity to challenge the validity of any provision of this Agreement or the Project Approvals, the parties shall cooperate in defending such action. Developer shall bear its own costs of defense as a real party in interest in,any such action, and shall reimburse the .City for all reasonable court costs and attorneys' fees expended by the City in defense of any such action or other proceeding. 17. Transfers and Assignments. 17.1 Right to Assign.. Developer may wish to sell, transferor 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, transferor assignment to a Transferee, Developer may sell, transferor 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. 17.2 Approval and Notice of Sale, Transfer or Assignment. The City Manager shall consider and decide on any transfer, sale or assignment within ten (10) days after Developer's notice, provided all necessary documents, .Dublin/Dublin RE Investors Development Agreement Page 11 of 16 For the Anderson Residential Project ~~3~ certifications and other information are provided to the City Manager to enable the City Manager to determine whether the proposed Transferee can pertorm the Developer's obligations hereunder. Notice of any such approved sale, transferor 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, transferor assignment. 17.3 Release Upon Transfer. Upon the transfer, sale, or assignment of all of Developer's rights, interests and obligations hereunder pursuant to Paragraph 17.1 of this Agreement, Developer shall be released from the obligations under this Agreement, with respect to the Property transferred, sold, or assigned, arising subsequent to the date of City Manager approval of such transfer, sale, or assignment; provided, however, that if any transferee, purchaser, or assignee approved by the City Manager expressly assumes all of the rights, interests and obligations of Developer under this Agreement, Developer shall be released with respect to all such rights, interests and assumed obligations: In any event, the transferee, purchaser, or assignee shall be subject to all the provisions hereof and shall provide all necessary documents, certifications and other necessary information prior to City Manager approval. 17.4 Developer's Right to Retain Specified Rights or Obligations. Notwithstanding Paragraphs 17.1 and 17.2 and Paragraph 18, Developer may withhold from a sale, transferor assignment of this Agreement certain rights, interests and/or obligations which Developer shall retain, provided that Developer specifies such rights, interests and/or obligations in a written document to be appended to this Agreement and recorded with the Alameda County Recorder prior to the sale, transfer or assignment of the Properly. Developer's purchaser, transferee or assignee shall then have no interest or obligations for such rights, interests and obligations and this Agreement shall remain applicable to Developer with respect to such retained rights, interests and/or obligations. 17.5 Termination of Agreement Upon Sale of Individual Lots to 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") leased (for a period of longer than one year) or sold to the purchaser or user thereof~and thereupon and without the execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that the benefits of this Agreement shall continue to run as to any such lot until a building is constructed on such lot, or until the termination of this Agreement, if earlier, at which time this Agreement shall terminate as to such lot. Dublin/Dublin RE Investors Development Agreement Page 12 of 16 For the Anderson Residential Project ~~ ~ ~~ 18. Agreement Runs with the Land. 18.1 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, or with respect to any owned property, (a) is for the benefit of such properties and is a burden upon such properties, (b) runs with such properties, and (c) is binding upon each party and each successive owner during its ownership of such. properties or any portion thereof, and shall be a benefit to and a burden upon each party and its property .hereunder and each other person succeeding to an interest in such properties. 19. Bankruptcy. 19.1. The obligations of this Agreement shall not be dischargeable in bankruptcy. 20. Indemnification. . Developer agrees to indemnify, defend and hold harmless the City, and its elected and appointed councils, boards, commissions, officers, agents, employees, and representatives from any and all claims, costs (including legal fees and costs) and liability for any personal injury or property damage which may arise directly or indirectly as a result of any actions or inactions by the Developer, or any actions or inactions of Developer's contractors, subcontractors, agents, or employees in connection with the construction, improvement, operation, or maintenance of the Project, provided that~Developer shall have no indemnification obligation with respect to negligence or wrongful conduct of the City, its contractors, subcontractors, agents or employees or with respect to the maintenance, use or condition of any improvement after the time it has been dedicated to and accepted by the City or another public entity (except as provided in an improvement agreement or maintenance bond). If City is named as a party to any legal action, City shall cooperate with Developer, shall appear in such action and shall not unreasonably withhold approval of a settlement otherwise acceptable to Developer. 21. Insurance. Dublin/Dublin RE Investors Development Agreement Page 13 of 16 For the Anderson Residential Project i~ ~3~ 21.1. Public Liability and Properly Damage Insurance. During the term of this Agreement, Developer shall maintain in effect a policy of comprehensive general liability insurance with aper-occurrence combined single limit of not less than one million dollars ($1,000,000.00) with a One Hundred Thousand Dollar ($100,000) self insurance retention per claim. The policy so maintained by Developer shall name the City as an additional insured and shall include either a severability of interest clause or cross-liability endorsement. 21.2. Workers Compensation Insurance. During the term of this Agreement Developer shall maintain Worker's Compensation insurance for all persons employed by Developer for work at the Project site. Developer shall require each contractor and subcontractor similarly to provide Worker's Compensation insurance for its respective employees. Developer agrees to indemnify the City for any damage resulting from Developer's failure to maintain any such insurance. 21.3. Evidence of Insurance. Prior to City Council approval of this Agreement, Developer shall furnish the City satisfactory evidence of the insurance required in Sections 21.1 and 21.2 and evidence that the carrier is required to give the City at least fifteen days prior written notice of the cancellation or reduction in coverage of a policy. The insurance shall extend to the City, its elective and appointive boards, commissions, officers, agents, employees and representatives and to Developer performing work on the Project. 22. Sewer and Water 22.1. Developer acknowledges that it must obtain water and sewer permits from the Dublin San Ramon Services District ("DSRSD") which is another public agency not within the control of the City. 23. Notices. 23.1. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to the City shall be addressed as follows: City Manager . City of Dublin 100 Civic Plaza Dublin, CA 94568 FAX No. (925)' 833-6651 Notices required to be given to Developer shall be addressed as follows: Jeff Lawrence Dublin RE Investors Dublin/Dublin RE Investors Development Agreement Page 14 of 16 For the Anderson Residential Project ~ ~ ~~ j,h 4155 Blackhawk Plaza Circle, Suite 201 Danville, CA 84506 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. 24. Agreement is Entire Understanding. This Agreement constitutes the entire understanding and agreement of the parties. ' 25. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit A Legal Description of Property Exhibit B Additional Conditions 26. Counterparts. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. 27. Recordation. The City shall record a copy of this Agreement within ten (10) days following execution by all parties. Dublin/Dublin RE Investors Development Agreement Page 15 of 16 For the Anderson Residential Project i~~~ By: 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: Janet Lockhart, Mayor ATTEST: Date: By: Date:_ Carolyn Parkinson, Interim City Clerk .APPROVED AS TO FORM: John D. Bakker, City Attorney _. DUBLIN RE INVESTORS, tLC, a California limited liability company By: Braddock & Logan Services, Inc., _ a California corporation Its Manager Name: ~ EFF I.-A~-~1 R~r1C~ ~ ~c~ PP E.s ~ O E n1 T (NOTARIZATION ATTACHED) Dublin/Dublin RE Investors Development Agreement- Page 16 of 16 For the Anderson Residential Project ao ~~~ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Contra Costa , 9' ~~ /~~ Nancy E. Embrey, Notary Public On o before me, Date Here Insert Name and Title of the Officer personally appeared ~~FF I--~u~ r2 who proved to me on the basis of satisfactory evidence to • be the person( whose namerj~©'are subscribed to the within instrument and acknowledged to me that ®/she/they executed the same in ~/her/their authorized capacity~s), and that by is er/their signature(s) on the NAtrCV E ENIBREY instrument the person(, or the entity upon behalf of Commlaston # 1578043 which the person( acted, executed the instrument. ..e Notary IPublk - cantorNa contra costa County ~ I certify under PENALTY OF.PERJURY under the laws My comm. t:xplres J~ e, 2009 of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official sea~l./_- Signature ~l ~ ' `~"' Place Notary Seal Above ignature of Notary Public OPTIONAL Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of Phis form to another documen~ Description of Attached Document ~ ~~iy.c%~ ~ c~g.o~r~- Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact • ^ Trustee Top of thumb here ^ Guardian or Conservator ^ Other: Signer Is Representing: Signer's Name: ^ Individual ^ Corporate Officer.-Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: '. Top of thumb here. ®2007 National Notary Associatlon • 9350 De Soto Ave., P.O. Bar 2402 • Chatsworth, CA 91313-2402 • www.NationalNataryorg Item #5907 Reonter. Call Toll-Ree 1 ~00.87fr6827 ai ~3~ Exhibit A Legal Description of Property as ~.~1 ExH~e~r~ Order Number: 0131-613542a1a Page Number: 11 ANDERSON PROPERTY LEGAL DESCRIPTION Real property in the Gty of Pleasanton, County of Alameda, State of California, described as follows: PARCEL ONE: BEING A PORTION OF SECTION 2, TOWNSHIP 3 SOUTH, RANGE 1, EAST MOUNT DIABLO BASE AND MERIDIAN, DESCRIBED AS FOLLOWS: BEGINNING AT THE POINT OF INTERSECTION OF THE NORTHERN LINE OF THE STATE HIGHWAY FROM DUBLIN TO LIVERMORE AS SAID LINE I5 DEFINED IN THAT CERTAIN. DEED . FROM ALICE M. SHORT AND BEATRICE B. BRIGHT, TO THE STATE OF CALIFORNIA RECORDED MARCH 13, 1934, IN BOOK 3008 OF OFFICIAL RECORDS OF ALAMEDA COUNTY AT PAGE 324, WITH THE EASTERN LINE OF COUNTY ROAD 6152, AS SAID COUNTY ROAD IS DESCRIBED IN THAT CERTAIN DEED FROM HENRIETTA FARRELLY TO COUNTY OF ALAMEDA, RECORDED JANUARY 2, 1918, IN BOOK 2612, OF DEEDS, AT PAGE 352, ALAMEDA COUNTY RECORDS; RUNNING THENCE SOUTH 89~ 3D' EAST ALONG THE NORTHERN LINE OF SAID STATE HIGHWAY 814.50 FEET; THENCE NORTH 0~ 31' WEST 2855.00 FEET TO THE NORTH BOUNDARY LINE OF TOWNSHIP 3 SOUTH, RANGE 1 EAST, MOUNT DIABLO BASE AND MERIDIAN; THENCE WEST ALONG THE LAST NAMED LINE 435.70 FEET TO THE EASTERN LINE OF SAID COUNTY ROAD N0. 6152; THENCE ALONG THE LAST NAMED LINE THE FOLLOWING COURSES AND DISTANCES; SOUTH 36~ 35' WEST 23.40 FEET; THENCE SOUTH 23~ 20' WEST 9Q1.40 FEET; THENCE SOUTH 0~ 31' EAST 2001.40 FEET TO THE POINT OF BEGINNING. ALSO BEING A PORTION OF THE SANTA RITA RANCHO. EXCEPTING THEREFROM THE PORTION CONVEYED TO THE SPATE OF CALIFORNIA, BY DEED RECORDED FEBRUARY 15, 1950, SERIES N0. AE-13413. ALSO EXCEPTING THEREFROM THE PORTION CONVEYED TO THE STATE OF CALIFORNIA, -BY DEED RECORDED OCTOBER 24, 196$, SERIES N0. BA-117504. PARCEL TWO: A PORTION OF THE PARCEL OF LAND CONVEYED TO THE STATE OF CALIFORNIA BY DEED NO. 6832 RECORDED FEBRUARY 15, 1950, IN BOOK 6021, PAGE 575, ALAMEDA COUNTY RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS: . COMMENCING ON THE EASTERLY LINE OF CROAK ROAD (ALSO KNOWN AS COUNTY ROAD N0. 6152) AT THE MOST NORTHERLY CORNER OF SAID PARCEL; THENCE ALONG THE GENERAL NORTHERLY LINE OF SAID PARCEL FROM A TANGENT THAT BEARS SOUTH D°21'4" WEST, ALONG A CURVE TO THE LEFT, WITH A RADIUS OF 50.00 FEET, THROUGH AN ANGLE OF 44°5424", AN ARC LENGTH OF 39.19 FEET; THENCE NORTH 88°33'15" WEST, 9.88 FEET; THENCE NORTH 89°59'16" WEST, 4.70 FEET TO THE EASTERLY LINE OF SAID CROAK ROAD; THENCE ALONG LAST SAID LINE NORTH 0°21`44"EAST, 35.14 FEET TO THE POINT OF COMMENCEMENT. PARCEL THREE: FirstAmeripn .Title a3~3q Order Number: U331-613542a1a Page Number: 12 COMMENCING AT A POINT ON THE EASTERLY LINE OF SAID PARCEL DESCRIBED IN SAID STATE DEED N0. 32178 (REEL20010R IMAGE 911), DISTANT THEREON S. 0°21'44" W., 159.94 FEET FROM THE NORTHEASTERLY CORNER OF LAST SAID PARCEL; THENCE FROM A TANGENT THAT BEARS S. 31.°56'43" W., ALONG A CURVE TO THE RIGHT WITH A RADIUS OF 270.00 FEET, THROUGH AN ANGLE OF 56°35'28", AN ARC LENGTH flF 266,68 FEET; THENCE S. 89°59'16" E., 221.42 FEET TO THE EASTERLY LINE OF SAID PARCEL DESCRIBED IN SAID STATE DEED N0. 6833 (VOLUME 6402 OR PAGE 393}; THENCE ALONG LAST SAID LINE ANO ALONG THE EASTERLY LINE OF SAID PARCELS DESCRIBED IN SAID STATE DEED NO. 32177 (REEL 1995 OR IMAGE 343} AND SAID STATE DEED N0. 32178 (REEL 2D01 OR IMAGE 911} N. 0°21'44" E., 127,11 FEET TO THE POINT OF COMMENCEMENT. APN: 905-0001-0006-03 (Affects: Parcels One and Two) and 985-0027-005 (Affects: Parcel Three) ~ . First American Title au ~,~ a g ~. Z . R ' < ~ e O - V H W N A• b Q m ~~ N "C ~ ~ W r ~a~ C ~ ~ ~ C M. 4 d ~ g cC = ~ -~°- O ~ N W ueo-n+ ,fin-, ~-a ~ _ 1 N~y~ , V! Q 'YL9Y•8i-: iwn-,-s:ps~ai„e, muR Y tiv+r coa ''E ~i m Q u 4 as ~ 3~ EXHIBIT B Additional Conditions The following Additional Conditions are hereby imposed pursuant to Paragraph 5.3 above. Subparaqraph 5.3.1 --Subsequent Discretionary Approvals None. Subparaqraph 5.3.2 --Mitigation Conditions Subsection a. Infrastructure Sequencing Program The Infrastructure Sequencing Program for the Project is set forth below. (i) Roads: The project-specific roadway improvements (and offers of dedication) identified in Resolution No. 08-04 of the City of Dublin Planning Commission approving Site Development Review for the Anderson Residential Project (hereafter "SDR Resolution") shall be completed by Developer to the satisfaction of the City's Public Works Director at the times and in the manner specified in the SDR Resolution unless otherwise provided below. All such roadway improvements shall be constructed to the satisfaction and requirements of the Public Works Director. (ii) Sewer. All sanitary sewer improvements to serve the project site (or any recorded phase of the Project) shall be completed in accordance with DSRSD requirements. (iii) Water. An all weather roadway and an approved hydrant and water supply system shall be available and in service at the site in accordance with the tentative map conditions of approval to the satisfaction and requirements of the City's fire department. All potable water system components to serve the project site shall be completed in accordance with the DSRSD requirements. Dublin/Investors Development Agreement ~ Page 1 of 5 For the Anderson Residential Project-EXHIBIT B ~c a~ ~ Recycled water lines shall be installed in accordance with'the tentative map conditions of approval. (iv) Storm Drainage. (A) General. The storm drainage systems off-site, as well as on-site drainage systems for the areas to be occupied, shall be improved consistent with the tentative map conditions of approval and to the satisfaction and requirements of the Dublin Public Works Department applying the City's and Zone 7 (Alameda County Flood Control and Water Conservation District, Zone 7) standards and policies which are in force and effect at the time of issuance of the permit for the proposed improvements. Pursuant to Alameda County's National Pollution Discharges Elimination Permit (NPDES) No. CAS0029831 with the California Regional Water Quality Control Board, or pursuant to subsequent permits adopted by the Board, all grading, construction and development activities within the City of Dublin must comply with the provisions of the Clean Water Act. Proper erosion control measures must be installed at development sites within the City during construction, and all activities shall adhere to Best Management Practices: (v) Other Utilities (e.q. gas, electricity, cable televisions, telephone). Construction shall be completed by phase prior to issuance of the first Certificate of Occupancy for any building within that specific phase of occupancy for the Project. Subsection b. Miscellaneous (i) Completion May Be Deferred. . Notwithstanding the foregoing, the City's Public Works Director may, in his or her sole discretion and upon receipt of documentation in a form satisfactory to the Public Works Director that assures completion, allow Developer to defer completion of discrete portions of any public improvements for the Project if the Public Works Director determines that to do so would not jeopardize the public health, safety or welfare. Subparagraph 5.3.3 -- Phasing, Timing This Agreement contains no requirements that Developer must initiate or complete development of the Project within any period of time set by the City. It is the intention of this provision that Developer be able to develop the Property in accordance with its own time schedules and the Project Approvals. Dublin/Investors Development Agreement Page 2 of 5 For the Anderson Residential Project-EXHIBIT B a~~ ~ Subparagraph 5.3.4 -Financing Plan Developer will install all improvements necessary for the Project at its own cost (subject to credits for any improvements which qualify for credits as provided in Subparagraph 5.3.6 below). Other infrastructure necessary to provide sewer, potable water, and recycled water services to the Project will be made available by the Dublin San Ramon Services District. Developer will enter into an "Area Wide Facilities Agreement" with the Dublin San Ramon Services District to pay for the cost of extending such services to the Project. Such services shall be provided as set forth in Subparagraph 5.3.2(a)(ii) and (iii) above. Subparagraph 5.3.5 -- Fees. Dedications Subsection a. Traffic Impact Fees. Developer shall pay the Eastern Dublin Traffic Impact Fee ("TIF") established by Resolution No. 111-04, including any future amendments to such fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Developer further agrees that it will pay at least eleven percent (11 %) of the "Section 1" portion of the TIF in cash. Developer also agrees that it will pay at least twenty-five percent (25%) of the "Section 2" portion of the TIF in cash. If the City amends its TIF fee and as a result the City's outstanding balance due on loans. is less than 25% of total Section 2 improvements, the Developer shall pay such reduced percentage of the "Section 2" portion of the TIF in cash. Subsection b. Traffic Impact Fee to Reimburse Pleasanton for Freeway Interchanges. Developer shall pay the Eastern Dublin I-580 Interchange Fee in the amounts and at the times set forth in Resolution No. 155-98 and by any subsequent resolution which revises such Fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits. DubliNlnvestors Development Agreement Page 3 of 5 For the Anderson Residential Project-EXHIBIT B as ~~~ Subsection c. Public Facilities Fees. Developer shall pay a Public Facilities Fee established by City of Dublin Resolution No. 214-02, including any future amendments to such fee that may be in effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits. Subsection d. Noise Mitigation Fee. Developer shall pay a Noise Mitigation Fee established by City of Dublin Resolution No. 33-96, including any future amendments to such fee that- may. be in effect at the time of issuance of building. permits. Developer will pay such fees no later than the time of issuance of building permits. Subsection e. School Impact Fees. School impact fees shall be paid by Developer in accordance with Government Code section 53080 and the agreement between Developer or its . predecessor in interest and the Dublin Unified School District regarding payment of school mitigation fees: Subsection f. Fire Facilities Fees. Developer shall pay a fire facilities fee established by City of Dublin Resolution No. 12-03 including any future amendments to such fee that may be in- effect at the time of issuance of building permits. Developer will pay such fees no later than the time of issuance of building permits. Subsection g: Tri-Valley Transportation Development Fee. Developer shall pay the Tri-Valley Transportation Development Fee in the amount and at the times set forth in City of Dublin Resolution No. 89-98 or any subsequent resolution which revises such fee. Developer will pay such fees no later than the time of issuance of building permits and in the amount of the impact fee in effect at time of building permit issuance. Subparagraph 5.3.6 -- Credit Subsection a. ~ Traffic Impact Fee Improvements --Credit The City shall provide a credit against Eastern Dublin Traffic Impact Fees to Developer far those improvements described in the resolution establishing the Eastern Dublin Traffic Impact Fee if such improvements are constructed by the Developer in their ultimate location. All aspects of the credit shall be covered by Dublin/Investors Development Agreement Page 4 of 5 For the Anderson Residential Project-EXHIBIT B a~ ~.-3~ the City's Administrative Guidelines for Eastern Dublin Traffic Impact Fees (Resolution~No. 20-07 ("TIF Guidelines"). Subsection b. Traffic Impact Fee Right-of--Way Dedications -- Credit The City shall provide a credit against Eastem Dublin Traffic Impact Fees to Developer for any TIF area right-of-way to be dedicated by Developer to the City which is required for improvements which are described in the resolution establishing the Eastern Dublin Traffic Impact Fee. All aspects of the credits. shall be governed by the TIF Guidelines. Subsection c. Public Facility Fee -Neighborhood Parkland Component City shall provide a credit against Public Facilities Fees to Developer for any neighborhood parkland to be dedicated by the Developer which exceeds the amount required under section 9.28 of the Dublin Municipal Code. Such credits shall be expressed in acres of parkland. All aspects of the credits shall be governed by the City's Public Facilities Fees Administrative Guidelines. (Resolution No. 195-99) Subparagraph 5.3.7 -Miscellaneous (i) Term of Site Development Review Approval. Notwithstanding anything to the contrary in the City's Zoning Ordinance and section 10 of this Agreement, the term of the Site Development Review approval granted by the City of Dublin Planning Commission Resolution No. 08-04, and any subsequent revision to it, shall automatically be extended for the term of this Agreement. 1045745.8 Dublin/Investors Development Agreement Page 5 of 5 For the Anderson Residential Project-EXHIBIT B J~~OF'DU~~f~ CITY CLERK X11 File # ^©0®-©© ~~~~ 8~ ~3d -go ~~ /// .C',~r,.._..,at~ AGENDA STATEMENT CITY COUNCIL MEETING DATE: November 4, 2008 SUBJECT: Positano Affordable Housing Agreement and Anderson Development Agreement -Amendment to the Affordable Housing Agreement for the First Phase of Positano and a Subsequent Affordable Housing Agreement to address the Inclusionary Zoning Obligation for the remainder of the Positano Development, and a Development Agreement for the 108-unit apartment project on the northern 7-acres of the Anderson property. Report Prepared by Jeff Baker, Senior Planner ATTACHMENTS: 1) Resolution approving Amendment No.2 to the Affordable Housing Agreement for the First Phase of Positano to include a total of 4161ots and modify the unit mix ,and income affordability level of the Inclusionary units within the First Phase, with the amended Affordable Housing Agreement attached as Exhibit A. 2) Resolution approving a Subsequent Phase Affordable Housing Agreement between the City of Dublin and Dublin RE Investors; LLC for the portion of Positano that is outside the First Phase Affordable Housing Agreement, with the Affordable Housing Agreement attached as Exhibit A. 3) Ordinance approving a Development Agreement between the City of Dublin and Dublin RE Investors LLC for the northern 7-acres of the Anderson property, with the Development Agreement included as Exhibit A. 4) City Council Staff Report dated October 18, 2005, with attachments. 5) City Council Meeting Minutes dated October 18, 2005. 6) City Council Meeting Minutes dated March 4, 2008. 7) Approved Affordable Housing Agreement for the First Phase of Positano. 8) Amendment No. 1 to the Affordable Housing Agreement for the First Phase of Positano. 9) Planning Commission Resolution recommending that the City Council adopt an Ordinance approving a Development Agreement between the City of Dublin and Dublin RE Investors LLC for the northern 7-acres of the Anderson property. 10) Planning Commission draft Meeting Minutes dated October 14, 2008 COPY TO: Jeff Lawrence, Braddock & Logan File PA OS-038 Page 1 of 10 G:\PAN\2005\OS-038 B&L Stage 2 Fallon Village\Affordable Housing Agreement\CC 11.04.08\CCSR Subsequent AHA 11.4.08.dnr Attachment 2 ~i . ~~ RECOMMENDATION: 1) Receive Staff presentation; 2) Open the public hearing; 3) Take testimony from the Applicant and the public; 4) Close the public hearing and deliberate; and 5) Take the following actions: a. Adopt the Resolution approving Amendment No. 2 to the Affordable Housing Agreement for the First Phase of Positano to include a total of 416 lots and modify the unit mix and income affordability level of the Inclusionary units within the First Phase (Attachment 1); b. Adopt the Resolution approving a Subsequent Phase Affordable Housing Agreement between the City of Dublin and Dublin RE Investors, LLC for the portion of Positano that is outside the First Phase Affordable Housing Agreement (Attachment 2); and c. Waive the first reading and introduce the Ordinance approving a Development Agreement between the City of Dublin and Dublin RE Investors LLC for the northern 7-acres of the Anderson property (Attachment 3). FINANCIAL STATEMENT: The costs to administer these Affordable Housing Agreements are included in the administration fees that are. charged with the sale of each affordable unit and the annual monitoring of rental projects. DESCRIPTION: Background Braddock & Logan's Positano development is a residential development consisting of 1,043 single-family homes on a 488-acre project site. The project site is located within the northern portion of the larger Fallon Village project area, east of Fallon Road and the Dublin Ranch development, west and southwest of the City Limits boundary with Alameda County and Doolan Canyon (see Map 1 to the right). Braddock & Logan has received approval of Site Development Review (SDR) to construct the first phase of the development consisting of 247 homes. Construction of the homes in the first phase is currently underway. Fl.-w.)~I..TJ4' Map 1: Positano Vicinity Map The Anderson property is generally located north of Interstate 580 and east of Croak Road near the eastern City limits in Fallon Village (see Map 2 to the right). Braddock & Logan has received approval of an SDR to construct a 108-unit apartment project consisting of 82 affordable units (including 78 units to satisfy a portion of the Inclusionary Zoning obligation for Positano and 4 units to satisfy the Inclusionary Zoning obligation for the Anderson property), 25 market rate units, and 1 manager's unit, on the northern 7-acres of the Anderson property. Map 2: Anderson Vicinity Map Page2of10 Affordable Housing Agreement Inclusionary Zoning Regulations ~~ The Inclusionary Zoning Regulations of the City of Dublin Zoning Ordinance (Chapter 8.68) contains affordable housing requirements for all new developments of 20 or more units. Residential developments consisting of 20 or more units are required to provide 12.5% of the units as affordable to households with very-low, low, and moderate income levels as determined by the California Department of Housing and Community Development for Alameda County. These affordable units are required to be constructed on- site and integrated with the market rate units. The affordable units are required to be evenly distributed throughout the project, include a range of bedrooms consistent with the overall project, and be indistinguishable in exterior appearance from the market rate units. The Inclusionary Zoning Regulations also provide the City Council with the ability to make exceptions to the regulations contained in the Inclusionary Zoning Ordinance, including alternative methods of compliance with the Inclusionary Zoning Regulations such as the development of off-site affordable units. Affordable Housing Proposal h1 accordance with the Inclusionary Zoning Regulations, the Positano development has a requirement to provide 130 affordable units. Table 1: Positano Inclusionary Zoning Requirements Total Units Inclusionary Re uirement Inclusionary Units 1,043 12.5% 130 Braddock & Logan prepared an affordable housing proposal to address the affordable obligation for the Positano development which was reviewed by the City Council on October 18, 2005 (Attachment 4). The City Council reviewed the proposal and directed Staff to work with Braddock & Logan to refine the proposal (Attachment 5 and 6) to include: 1) rear yard landscaping, energy efficient measures, and green building principles into affordable units; 2) study feasibility of integrating market rate units into anoff-site affordable apartment project; and 3) address the timing and security necessary to ensure completion of the off-site apartments. Since October 2005, the affordable housing proposal has been refined and those refinements were reviewed by the City Council on June 5, 2007, March 4, 2008, and June 17, 2008. The refined affordable housing proposal continues to include a combination of on-site integrated units, secondary units, off-site apartments on the Anderson property, and a $1,000,000 Community Benefit Payment. Please refer to Table 2 for a summary of the existing affordable housing proposal. fable 2: Affordable Housin Pro osa l June 17, 2008 Unit Type Ownership Income Level Size of Units Affordability /Rental period 22 Single-family 50% moderate (12 units) detached Units For sale 20 /° low (6 units) 4 bedroom units In perpetuity 30% ve low (4 units) 50% moderate (12 units) 30 Secondary Units Rental 20% low (6 units) 1 bedroom/ In perpetuity 30% ve tow (12 units 1 bath 50% moderate (39 units) 78 Apartments* Rental 20% low (I6 units) 2 bedroom/ In perpetuity 30% ve low (23 units) 2 bath 130 Total Units * Plus 4 units to satisfy the Inclusionary Zoning requirements for the Anderson property. Page 3 of 10 Staff and Braddock & Lo an have been workin to re are an Affordable Housin A reement AHA for g g P P g g ( ) the entire 1,043 unit project since the October 18, 2005 City Council meeting. An AHA was prepared for the first phase of Positano (First Phase AHA) consisting of 247 units, which allowed the developer to begin construction of those units. The First Phase AHA was approved by the City Council on June 5, 2007, and amended on June 17, 2008 to eliminate 4 integrated units and- add 4 secondary units (Attachments 7 and 8). The Developer is required to enter into a subsequent AHA to address the Inclusionary Zoning obligation for the Subsequent Phase and Final Phase of Positano (Subsequent and Final Phase AHA). Please refer to Map 3 (below) for the location of the First Phase, Subsequent Phase and Final Phase of the project. ~ ~ _ Po_;aaePr^.;uf`resr?Lru Za .ae, Po<; r,n,, Par cf Fi:~ r Py!se ~ ~.,., scbsrcxc: ?max ®rSS Easi Fin?1 P~nu f ~ E..??arc! __~ '•~ ". ~ ~~ i ~' L L ~ ~ ~~.1. ~ ~~ ~% -~ _ ;i ,. .1 .. . ..~ ..---._.~ ,r Map 3: Phases of Positano Staff and Braddock & Logan have worked together to prepare the subsequent AHA. During this time, Braddock & Logan further refined their affordable housing proposal for Positano, which impacts the First Phase AHA. Therefore, Staff has also prepared an amendment to the First Phase AHA (Please refer to section I.A of this Staff Report below). The proposed amendment to the First Phase AHA and the proposed Subsequent and Final Phase AHA, are included in Attachments 1 and 2 of this Staff Report respectively, and are further discussed below. Development Agreement The Eastern Dublin Specific Plan (EDSP) requires all Applicants for development within the Specific Plan area to enter into a Development Agreement. Additionally, Condition 98 of the approved Site Development Review for the 108-unit apartment project on the Anderson property further requires the Applicant to enter into a Development Agreement prior to issuance of a Grading Permit or Building Permit for the project (Resolution 08-04). Therefore, Staff has prepared a Development Agreement for the Anderson property, which is included in Attachment 3 of this Staff Report and is further discussed below. Current Request Braddock & Logan is currently requesting approval of the following: 1. Amendment to the AHA for the First Phase of Positano as follows: ^ Increase the First Phase to include 416 lots (Parts I & II of First Phase -see Map 3 above) ^ Modify the unit mix and income affordability level of the on-site Inclusionary Units Page 4 of 10 ~~ ~~ 2. Subsequent AHA to address the inclusionary Zoning obligation for the Subsequent and Final Phases of Positano (totaling 627 lots); and 3. Development Agreement for the residential project on the northern 7-acres of the Anderson property. ANALYSIS: I, Affordable Housing Agreement (Overall Positano Project) Braddock & Logan has further refined the overall affordable housing proposal for Positano since it was presented to the City Council. The requested changes to the affordable housing proposal modify the unit mix and the income affordability level of the single-family detached units and the secondary units. Income Affordability Level Braddock & Logan's refined affordable housing proposal continues to include a total of 130 affordable units including a combination of on-site integrated units, secondary units, off-site apartments on the Anderson property, and a $1,000,000 Community Benefit Payment. However, the number of on-site integrated units has been reduced and the number of secondary units has been increased. The income level (affordability) of these units has also been revised to eliminate on-site integrated units affordable to very-low income households and eliminate the secondary units affordable to moderate income households. Please refer to Table 3 (below) for the proposed refinements. The result of these refinements is to "deepen" the affordability of the project, by adding 9 additional very low-income units, and correspondingly eliminating 9 moderate income units. Table 3: Refinements to Affordable Housing Proposal A roved Pro osal Current Pro oral Unit T e Income Level Unit T e Income Level 22 Single-family 500% moderate (12 units) 18 Single-family 83% moderate (15 units) detached Units 20% low (6 units) detached Units 17% low (3 units) 30% very low (4 units) 30 Secondary 500% moderate (12 units) 34 Secondary 26% low (9 units) Units 20 10 low (6 units) Units 74% very low (25 units) 0 30 /o ve low (12 units) 78 Off-Site Units 50% moderate (39 units) 20% low (16 units) No change No change (Anderson) 30% very low (23 units) The Applicant has indicated that the costs of homeownership including Homeowners- Association (HOA) dues, Geologic Hazard Abatement District (GRAD) fees, Landscape Maintenance District fees, and overall homeowner expenses make it infeasible to market the single-family detached homes to very-low income households. The Applicant estimates that these fees will total approximately $175 per month. Along with the restricted sales price for very-low income households will come a number of expenses, including landscape maintenance, heating and cooling and general long-term maintenance of the home. The additional costs of homeownership may exceed what avery-low income household maybe able to pay. Therefore, Staff supports the Applicant's proposal to provide secondary units for very- low income households. This is also consistent with the AHA Amendment that was approved by the City Council on June 17, 2008 which eliminated 4single-family detached homes that were affordable to very-low income households and added 4 additional secondary units. Table 4 (below) provides a summary of the Applicant's current overall affordable housing proposal to address the Inclusionary Zoning obligation for the entire Positano project. Page 5 of 10 ~s~ ~ Table 4: Refined Affordable Housing Proposal for Positano (Current Proposal) Unit Type Ownership Income Level Size of Units Affordability /Rental period 18Single-family For sale 830% moderate (15 units) 4 bedroom units In perpetuity detached Units 17 /o low (3 units) 34 Secondary Units Rental 260 0 low (9 units) 1 bedroom/ ~ e etui P ~ ~' 74 /o ve low (25 units 1 bath 50% moderate (39 units) 78 Apartments* Rental 20% low (16 units) 2 bedroom/ ~ Perpetuity 30% very low 23 units) 2 bath 130 Total Units * Plus 4 units to satisfy the Inclusionary Zoning requirements for the Anderson property The proposed refinements to the affordable housing proposal have been incorporated into the proposed amendment to the First Phase AHA and the proposed Subsequent and Final Phase AHA as discussed below. A. First Phase Affordable Housing Agreement Amendment The amended First Phase AHA includes a total of 416 lots. These 416 lots generate an Inclusionary Zoning Requirement to provide 52 affordable units. Table 5: First Phase Inclusionary Requirement Total Units Inclusionary Re uirement Inclusionary Units 416 12.5% 52 Braddock & Logan's affordable housing proposal includes 52 on-site affordable units, which consists of integrated units and granny flats. These 52 affordable units would be constructed within the First Phase of Positano. Therefore, the affordable housing in First Phase would include a combination of 18 single-family detached units, 34 secondary units, and payment of a prorated share of the $1,000,000 Community Benefit Payment on a per unit basis (i.e. $958.77 per unit) prior to issuance of each building permit in Positano (for a total of $398,848 for 416 units). Please refer to Table 6 below for the unit mix and income affordability level of on-site units that will be constructed within the First Phase. As indicated above, the proposed unit mix "deepens" the affordability of the Inclusionary units by adding 9 additional very-low income units, and correspondingly eliminating 9 moderate income units. Table 6: On-Site Inclusionary Units -First Phase Unit Type Ownership Income Level Size of Units Affordability /Rental period 18 Single-family detached Units For sale 830% moderate (IS units) 17 /o low (3 units) 4 bedroom units In perpetuity 34 Secondary Units Rental 260% low (9 units) 1 bedroom/ ~ perpetuity 74 /o ve low (25 units) 1 bath 52 On-site Units Location of Inclusionary Units Braddock & Logan has received approval of an SDR to construct the first 247 units in the First Phase of Positano. These units are located in Part I of the First Phase (Please refer to Map 3 on page 4). The first 247 units generate a requirement to provide 31 affordable units (247x12.5%=31 units). The amended First Phase AHA identifies the location of 26 affordable units within Part 1 Page 6 of 10 Y V I' ~ Y of the First Phase and obligates the Developer to construct 5 additional affordable units, or make a refundable deposit of in-lieu fees to be returned when the five units are constructed. Braddock & Logan has not yet received approval of an SDR for the lots in Part 2 of the First Phase (Map 3 on Page 4). Therefore, the Developer is not able to identify which lots will have affordable units at this time. Therefore, the First Phase AHA allows the Community Development Director to approve the location of the inclusionary units in Part 2 of the First Phase at a later date. Rear Yard Landscaping The City Council directed Staff to work with Braddock & Logan to provide rear yard landscaping for the affordable single-family detached units. The First Phase AHA (Attachment 7 -AHA Section 6.C, Page 5) requires the Developer to provide rear yard landscaping for the all of the detached affordable units as directed by the City Council (including turf, shrubs, trees, irrigation, and a usable rear yard area). The units in the expanded First Phase would be subject to this. requirement. The Developer is required to submit conceptual rear yard Landscape Plans for review as part of the SDR application for the design of the homes. Energy Efficiency and Green Building Principles The First Phase AHA (Attachment 7 -AHA .Section 6.D, Page 5) also obligates the developer to incorporate energy efficient measures and green building practices for all of the affordable detached units and secondary units. The units in the expanded First Phase would be subject to this requirement. Braddock & Logan has submitted a checklist outlining the measures that are proposed to address the City Council's direction. Braddock & Logan also submitted a "Single-Family GreenPoint Checklist" that identifies the energy efficiency and green building measures that will be incorporated into the affordable units. This checklist was incorporated into the First Phase AHA (Attachment 7, Exhibit 5) and the agreement requires Braddock & Logan to meet the minimum standards established by the checklist. The units in the expanded First Phase would be subject to this requirement. The proposed amendment to the First Phase AHA meets the intent of the Inclusionary Zoning Regulations. This AHA is based on the affordable housing proposal that was presented to the City Council by Braddock & Logan. B. Subsequent and Final Phase Affordable Housing Agreement The Subsequent Phase and Final Phase provide for the required inclusionary units for the remaining 6271ots in Positano. Subsequent Phase The Subsequent Phase of Positano includes a total of 88 lots as shown on Map 3 on page 4. These 881ots generate an Inclusionary Zoning Requirement to provide 11 affordable units. Table 7: Subse uent Phase Inclusiona Re uirement Total Units Inclusionary Re uirement Inclusionary Units 88 12.5% 11 As previously discussed, Braddock & Logan's affordable housing proposal includes the construction of 78 off-site affordable apartments on the Anderson property. These off-site affordable units will satisfy the Inclusionary Zoning obligation for the Subsequent Phase and Final Phase of Positano. However, Braddock & Logan is requesting the ability to construct these off- Page7of10 3~Q~~3 site affordable units concurrent with the construction of the units in the Final Phase (please refer to the discussion of the Final Phase below). Therefore, Braddock & Logan proposes to initially satisfy the Inclusionary Zoning obligation for the 88 units in the Subsequent Phase by making a refundable deposit of in-lieu fees for these 11 affordable units. The agreement also permits the posting a letter of credit or other financial security instead of the deposit. The deposit, or security securing the deposit, would be returned to the Developer once the off-site affordable units on the Anderson property are complete and ready for occupancy. The Developer is also obligated to pay a prorated share of the $1,000,000 Community Benefit Payment on a per unit basis (i.e. $958.77 per unit) prior to issuance of each building permit in Positano (for a total of $84,372 for 88 units). Final Phase The Subsequent Phase of Positano includes a total of 539 lots as shown on Map 3 on page 4. These 5391ots generate an Inclusionary Zoning Requirement to provide 67 affordable units. Table 8: Final Phase Inclusiona Re uirement Total Units Inclusionary Re uirement Inclusionary Units 539 12.5% 67 Braddock & Logan's affordable housing proposal includes the construction of 78 off-site affordable units on the Anderson property to satisfy a portion of the Inclusionary Zoning obligation for Positano and 4 affordable units to satisfy the Inclusionary Zoning obligation for the Anderson project, as directed by the City Council on March 4, 2008 (Attachment 6). The off-site affordable units will satisfy the Inclusionary Zoning obligation for the units in the Subsequent Phase and Final Phase. Please refer to Table 9 below for the unit mix and income affordability level of on- site units that will be constructed within the First Phase. The Developer is also obligated to pay a prorated share of the $1,000,000 Community Benefit Payment on a per unit basis (i.e. $958.77 per unit) prior to issuance of each building permit in Positano (for a total of $516,777 for 539 units). Table 9: Final Phase Inclusionary iJnit Allnratinn Unit T e yp Ownership /Rental Income Level vv Size of Units Affordability Period 50% moderate (39 units) 78 Apartments* Rental 20% low (16 units) 2 b es ~ perpetuity 30% ve low (23 units 2 bath Total: 78 Affordable Units * Plus 4 units to satisfy the Inclusionary Zoning requirements for the Anderson property. The Subsequent Phase AHA regulates the timing of construction of off-site affordable units to ensure that they are constructed concurrently with the Inclusionary obligation for the Final Phase of Positano. The timing triggers for the Anderson project are as follows: 1. Issuance of site work permits and commence site improvements for the Anderson project prior to issuance of the 505th Building Permit for Positano; 2. Issuance of building permits and commence construction of Anderson project prior to issuance of the 656th building permit for Positano; and 3. City sign-off on final inspection for the entire Anderson project prior to issuance of the 756th building permit for Positano. The affordable units in the Anderson project will incorporate green building principles as directed by the City Council (AHA Section 2.c.ii, Page 5 -Attachment 2, Exhibit A). The affordable Page 8 of 10 ~Cj ,~ units are required to meet the minimum requirements for a GreenPoint Rated home as set forth in t the "Multifamily GreenPoint Checklist". The proposed Subsequent AHA meets the intent of the Inclusionary Zoning Regulations. This AHA is based on the affordable housing proposal that was presented to the City Council by Braddock & Logan. II. Anderson Development Agreement The proposed Development Agreement (Attachment 3, Exhibit A) was drafted by the City Attorney with input from Staff and the Applicant to meet the needs of the City. The Development Agreement is based on the terms of the Standard Development Agreement for properties in the EDSP. The proposed Development Agreement provides security to the developer that the City will not change its zoning and other laws applicable to the project for a period of five years. In return, the Developer agrees to comply with the Conditions of Approval and make commitments which the City might otherwise not have the authority to compel. The Development Agreement augments the City's standard development. regulations; defines the precise financial responsibilities of the developer; ensures timely provision of adequate public facilities for each project; and provides .terms for the Developer to advance funds for specific facilities which have community or area-wide benefit or for reimbursement from future development, as appropriate. The proposed Development Agreement includes a provision that extends the term of the Site Development Review approval for the 108-unit apartment project on the Anderson property for a period of five years. This extension will coincide with the terms of the proposed Affordable Housing Agreement that addresses the construction timing of the affordable units on the Anderson property in order to satisfy a portion of the affordable housing obligation for the Positano development. The Planning Commission reviewed the proposed Development Agreement at their meeting on October 14, 2008 and unanimously adopted a Resolution recommending that the City Council adopt an Ordinance approving the Development Agreement (Attachments 7 and 8). A draft Ordinance approving the Development Agreement between the City of Dublin and Dublin RE Investors LLC is included as Attachment 3 to this Staff Report. PUBLIC NOTIFICATION: In accordance with State law, a public notice regarding this hearing was mailed to all property owners and occupants within 300 feet of the proposed project. A public notice was also published in the Valley Times and posted at several locations throughout the City. To date, the City has not received comments or objections from surrounding property owners or tenants regarding the current,proposal. CONCLUSION: Braddock & Logan is proposing to amend the First Phase AHA to include additional lots and modify the unit mix and the income affordability for the secondary units, and they are requesting approval of a Subsequent Phase AHA for the remaining portions of Positano. Because the secondary units and the affordable single-family detached units are not strictly consistent with the requirements in the Inclusionary Zoning Ordinance that states the affordable units should "be allocated to households with very-low, low, and moderate income levels" as defined in the Ordinance, and should "reflect the range of numbers of bedrooms provided in the project as a whole" and because the secondary units do not satisfy the requirement that the units "not be distinguished by exterior design, construction, or materials," the City Council must find that Braddock & Logan's alternate proposal meets the purposes of the Inclusionary Zoning Ordinance. Staff believes this finding can be made based on the affordability characteristics of 4 bedroom homes, the fact that the units will be affordable in perpetuity, the addition of the Community Page 9 of 10 cJ`~ ~/~ Benefit Payment, and the Developer's commitment to provide fully landscaped rear yards and energ efficiency measures which reduce housing costs. The proposed Development Agreement will implement the requirements of the EDSP, and the provisions of the Planned Development zoning (PA 07-037), and the approved SDR and associated Conditions of Approval for the northern 7-acres of the Anderson property. The terms of the proposed Development Agreement are also consistent with the proposed amendment to the First Phase AHA and the proposed Subsequent Phase AHA. RECOMMENDATION: Staff recommends that the City Council: 1) Receive Staff presentation; 2) Open the Public Hearing; 3) Take testimony from the Applicant and the public; 4) Close the Public Hearing and deliberate; and 5) Take the following actions: a) Adopt the Resolution approving Amendment No. 2 to the Affordable Housing Agreement for the First Phase of Positano to include a total of 416 lots and modify the unit mix and income affordability level of the Inclusionary units within the First Phase (Attachment 1); b) Adopt the Resolution approving a Subsequent Phase Affordable Housing Agreement between the City of Dublin and Dublin RE Investors, LLC for the portion of Positano that is outside the First Phase Affordable Housing Agreement (Attachment 2); and c) Waive the first reading and introduce the Ordinance approving a Development Agreement between the City of Dublin and Dublin RE Investors LLC for the northern 7-acres of the Anderson property (Attachment 3). Page 10 of 10