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HomeMy WebLinkAboutItem 7.5 Afford Home Agmt Positatno Attch 7RESOLUTION NO. - 09 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN APPROVING AMENDMENT N0.3 TO THE AFFORDABLE HOUSING AGREEMENT FOR 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 (PA OS-038 AND PA 07-005) WHEREAS, Dublin RE Investors, LLC (the Developer) is the owner of two parcels of land within Fallon Village which together are known as Positano and consists of 1,043 residential units; and WHEREAS, an Affordable Housing Agreement is required by the Inclusionary Zoning Regulations of City of Dublin Zoning Ordinance (Chapter 8.68); and WHEREAS, the Developer has proposed a comprehensive affordable housing proposal to address the requirements of the Inclusionary Zoning Ordinance for the entire Positano development and said proposal includes alternative methods of compliance with the Inclusionary Zoning Regulations; and WHEREAS, the 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 ("the First Phase Agreement") and Amended on June 17, 2008 and November 4, 2008, wherein the Developer agreed to construct a total of 52 affordable units (18 single-family detached homes and 34 secondary units); and WHEREAS, the 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 Investors, LLC (the Developer) has requested an amendment to the First Phase Agreement to (a) eliminate seven of the single-family detached homes and replace them with secondary units affordable to very-low income households and (b) alter the timing of the construction and the affordability of the various affordable units. WHEREAS, the Project has been found to be Categorically Exempt from the California Environmental Quality Act (CEQA); and WHEREAS, a Staff Report dated June 16, 2009, and incorporated herein by reference, described and analyzed the proposed amendment to the Affordable Housing Agreement; and ATTACHMENT 7 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. 3 to the Affordable Housing Agreement for the First Phase (416 units) of Positano to provide: eleven single-family detached homes (1 low income unit and 10 moderate income units); eight 1-bedroom secondary units (7 low income units and 1 very-low income unit); and thirty-three studio secondary units (33 very-low income units) as described in Exhibit A. BE IT FURTHER RESOLVED that the City Manager is authorized and directed to execute Amendment No. 3 to the Affordable Housing Agreement included as Exhibit A. PASSED, APPROVED AND ADOPTED this 16th day of June 2009, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor -2- G:\PA#\2005\OS-038 B&L Stage 2 Fallon VillageWffordable Housing Agreement\AHA Phase 1 Amend #3\CC Reso 06.16.09.doc zn~ s~j~zs AMENDMENT N0.3 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 N0.3 TO AFFORDABLE HOUSING AGREEMENT is hereby entered into this 16th day of June, 2009 by and between the City of Dublin ("the City") 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 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, and by the Amendment No. 2 to said agreement, dated November 4, 2008 ("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 residential units subject to this Agreement to Braddock & Logan Group II, L.P., which has become a party to this Agreement. 2. The Agreement refers to the initia1247 residential units in the Project as "Part One of the Expanded First Phase." The Agreement, as previously amended, provides that Developer will satisfy its 31-inclusionary unit obligation in Part One of the Expanded First Phase (a) by constructing (i) 9 integrated inclusionary units (single-family homes) on 3,200 square foot lots, which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), and (ii) 17 1-bedroom, secondary dwelling units, which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"); (b) paying fees in lieu of construction for the remaining 5 unit obligation; (c) making a community benefit payment prior to issuance of each building permit equal to $958.77 (which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); (d) including rear yard landscaping and energy efficiency measures to reduce the homeowners' cost of living in the 9 integrated inclusionary units; and (e) incorporating green building principles into the 26 inclusionary units. 3. The Agreement, as previously amended, requires the income levels of the 26 inclusionary units in Part One of the Expanded First Phase to be as follows: 8 very low-income units (8 1-bedroom Secondary Units); 121ow-income units (3 four-bedroom Integrated Units, and 9one-bedroom Secondary Units); and 6moderate-income units (6 four-bedroom Integrated Units). 4. Developer, following further discussions with City staff, has proposed to increase the number of inclusionary units to be constructed in Part One of the Expanded First Phase by five Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project EXHIBIT A TO Tune 16.2009 ATTACHMENT 7 r-~ „~. ~~~ s.~.. ~'*~'" P"' 4 units thereby eliminating the payment of in-lieu fees for the First Phase, to reduce the number of inclusionary units in Part Two of the Expanded First Phase by five units, and to change the inclusionary unit mix of the 31 units in Part One of the Expanded First Phase by (a) eliminating (i) two low-income integrated units; (ii) two low-income second units; and (iii) five rnoderate- income integrated units, (b) increasing the number of very low-income secondary units by 14 (which includes the five additional inclusionary units), and (c) changing the size of 21 of the very low-income, secondary units from 1 bedrooms to studios. 5. Accordingly, Developer has proposed to satisfy its 52-unit inclusionary unit obligation for the Expanded First Phase by: a. Constructing a total of 31 inclusionary units in Part One of the Expanded First Phase as follows: (i) 2 integrated inclusionary units (1 moderate-income unit and llow-income unit), which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), (ii) 71ow-income, 1 bedroom secondary units and 22 very low-income, secondary dwelling units (21 studios and 1 1-bedroom), which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"); b. Constructing a total of 21 inclusionary units in Part Two of the Expanded First Phase as follows: (i) 9moderate-income, integrated inclusionary units, which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), (ii) 12 1-bedroom, very low-income secondary dwelling units, which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"); c. Making a community benefit payment prior to issuance of each building permit equal to $958.77 (which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); d. Including rear yard landscaping and energy efficiency measures to reduce the homeowners' cost of living in the Integrated Units; and e. Incorporating green building principles into the inclusionary units, by obtaining 52 points for unit on the "Single Family GreenPoint Checklist, which exceeds the City's 50-point requirement under the Green Building Ordinance.' 6. The City is agreeable to the amendment.proposed by the Developer, and the City Council hereby finds that the alternate method of complying with the Regulations for the 416- unit Expanded First Phase meets the purposes of the Regulations. NOW, THEREFORE, Developer and City for themselves and their respective successors and assigns hereby agree as follows: Section 1. Amendment of Section 3 of the Agreement. Section 3 of the Agreement is amended to read as follows: Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16. 2009 N~. '~ i ~; ~~~~ " 3. Developer's Compliance with Affordable Housing Obligation. 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 proj ect. 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. Part One of Expanded First Phase (Initial 247 Residential Parcels). Developer has identified a 247-lot portion of the Project, which is depicted in Exhibit 2, that is referred to herein as "Part One of the Expanded First Phase." Developer will satisfy its Affordable Housing Obligation for Part One of the Expanded First Phase by (a) constructing 31 Inclusionary Units (one (1) 1-bedroom, very low- income, Second Unit; seven (7) 1-bedroom, low-income Second Units; twenty-one (21) studio, very low-income Second Units; one (1) 4-bedroom, low-income Integrated Unit; and one (1) 4-bedroom, moderate-income Integrated Unit; (b) making a $958.77 community benefit payment prior to issuance of each building permit in Part One of the First Phase as provided in Section 5 of the Agreement. Exhibit 3 shows, in two separate diagrams, the location and type of the Inclusionary Units to be constructed within Part One of the Expanded First Phase. The City finds that the preliminary construction schedule attached hereto as Exhibit 4, which shows the completion of the 31 Inclusionary Units along with 216 market rate units, constitutes construction of the Inclusionary Units concurrently with the market rate units as required by Section 8.68.030 of the Regulations. b. Part Two of Expanded First Phase (Subsequent 169 Residential Parcels). Developer has identified a 169-lot portion of the Project, which is depicted in Exhibit 2, that is referred to herein as the "Part Two of the Expanded First Phase." Prior to development on, and approval of subsequent final maps that include, Part Two of the Expanded First Phase, Developer shall have received the approval of the Community Development Director of (a) a Diagram of Location of Additional Inclusionary Units in the Expanded First Phase of the Project, in a form similar to Exhibit 3 attached hereto ("the Subsequent Location Diagram") and (b) a preliminary construction schedule for the subsequent phase of the Project ("the Subsequent Construction Schedule"), in a form similar to Exhibit 4 attached hereto. Upon the Community Development Director's approval, the Subsequent Location Diagram and the Subsequent Construction Schedule shall be added to, respectively, Exhibit 3 and Exhibit 4 to this Agreement with respect to the Integrated Units to be constructed in connection with Part Two of the Expanded First Phase. In approving the revised Exhibits 3 and 4, the Community Development Director shall find (a) that the revised Exhibit 3 shows 12 additional very low-income, Second Units and 9 additional moderate-income, Integrated Units; (b) that adherence to the revised Location Diagram and the revised Construction Schedule would constitute construction of 21 additional Inclusionary Units concurrently with Part Two of the Expanded First Phase and (c) that the 21 Inclusionary Units are "reasonably dispersed" throughout the Expanded First Phase, as required by Section 8.68.030.E of the Regulations. Developer hereby agrees that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16.2009 2i2~22~ maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase) until such time as it has satisfied the requirements of this Subsection. c. If the Building Official or Community Development Director determines that the Inclusionary Units have not been or are not being constructed concurrently with the market-rate units as required by this Section 3, the Building Official shall withhold further issuance of building permits in Part Two of the Expanded First Phase until construction of the Inclusionary Units in the phase has been completed to the satisfaction of the Community Development Director. Notwithstanding the foregoing, Developer shall be permitted to deviate from the preliminary construction schedule in Exhibit 4, provided that Community Development Director finds that the Inclusionary Units are constructed concurrently with the market rate units as required by Section 8.68.030 of the Regulations. Section 2. Amendment of Section S of the Agreement. Section 5 of the Agreement is amended to read as follows: "5. Community Benefit Payment. Developer hereby agrees to make a $958.77 community benefit payment prior to issuance of the building permit for each residential unit in the Expanded First Phase, excepting Secondary Units. 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." Section 3. Amendment of Subsection 6.D of the Agreement. Subsection 6.D of the Agreement is amended to read as follows: "D. Green Building Principles. Construction of the Integrated Units and Secondary Units shall incorporate Green Building Principles by obtaining 52 points on the Single Family GreenPoint Checklist," attached hereto as Exhibit 5." Section 4. Amendment of Section 7 of the Agreement. Section 7 of the Agreement is amended to read as follows: "7. Unit Bedrooms and Size. The size of the Inclusionary Units shall be consistent with the Site Development Review approval of the Planning Commission, provided however, that minor changes to unit size maybe approved by the Community Development Director through a Site Development Review Waiver. The Developer proposes to provide in Part One of the Expanded First Phase: A. 29 very low-income units (8 1-bedroom Secondary Units and 21 studio Secondary Units); B. llow-income, four-bedroom, Integrated Unit ;and C. lmoderate-income, four-bedroom Integrated Unit. Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16.2009 213J~ 22~ The developer proposes to provide in Part Two of the Expanded First Phase: A. 12 very low-income units (12 1-bedroom Secondary Units); B. 9moderate-income, Integrated Units. The City hereby finds that, while this breakdown does not reflect the range of numbers of bedrooms provided in the Expanded First Phase as a whole, as required by Section 8.68.030.E of the Regulations, the Developer's alternate method of compliance meets the purposes of the Regulations." Section 5. Revised Memorandum of Agreement 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 C, 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 6. Amendment of Exhibit 3 and Exhibit 4. Exhibit 3 and Exhibit 4 of the Agreement are hereby replaced with Exhibit A and Exhibit B to this Agreement. Section 7. All other provisions of the Agreement shall remain in effect. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN By: Attest: Joni Pattillo, City Manager Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney DUBLIN RE INVESTORS, LLC a California limited liability company By: Braddock and Logan Services, Inc. a California corporation Its Manager .- Y Name: ~ F F I-~.1~v3 ~ ~c-L Its• <~ ~~ Plus t D ~~'` BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16. 2009 zi~-a~ z25 Name: EFL i--ASR-~.~-~ v 1 c~C P2ES ~ ~ ~ ~.~ 1228984.3 Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16. 2009 Z~~~~ZS State of California County of Contra Costa On ~ ~ before me, Date personally appeared J NANCY E. EMBREY '"" Commission # 1578043 Notary Public - Colifomla ' ~~ Contro Costa County My Comm. Expires Jun 8, 2009 ®!- I ~®1 Y/Y!L Though the information below is not required by taw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: ri Y/Y~ Document Date: ~ (~ ( 6 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 ^ Guardian or Conservator ^ Other: Is Representing: 1~a, 3 -t~ A ~ A -- WITNESS my hand and official seal. Signature a-~ ~ ' v" - ~~ Place Notary Seal Above atura of Notary Public who proved to me on the basis of satisfactory evidence to be the persons whose name(X}~~e subscribed to the within instrument and acknowledged to me that QJsl~a~t+~eq executed the same ink/I~fl:l°reir authorized capacity(l~s), and that by ~i~/Yrerftf'r~t'r signature(~`,1 on the instrument the person(', or the entity upon behalf of which the person( acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Nancy E. Embrey, Notary Public ~~ 0 Top of lhurnb here Number of Pages: ~Q V., ~-- Signer's Name: ^ Individual ^ Corporate Officer -Title(s): _ ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing Top 01 thumb here ©2007 National Notary Association • 9350 De Solo Ave., P.O Box 2402 • Chalsvrorth, CA 91313-2402• www,NationalNotaryorg Item t159D7 Reorder. Call Toll-Free 1-B00-B76-6827 2i~~~z~ EXHIBIT A Revised Exhibit 3 to the Agreement ["Diagram of Location of Inclusionary Units in the First Phase of the Project"] -e, `~ 60 61 $ 8 • au , . Y~~yO 3A $7 ~15~ $6 ~-A . G z.B 34 NOT A PART 1' ~, 3 2B ~~ O * GO `ls.n ~G~yF' ~ ®:. $6„ . ~.B `. 66 1 6$ =A .. 64 63 ` ~* . 1-B _: ~' `. 68` S~ 71 ' CANrA~ 9 DRIVE 14 IS I 1=-x710 ~ ® 6 : j Q' 13 =-o ~-B ~-^ 711 ~ =.B. J . f ~ LEGEND ® Moderate Income - I unit Plan 1 - 4 bedroom BMR Unit Lot 72 Low-Income - 8 units Plan I - 4 bedroom BMR Unit Lot 62 Plan 3 -Secondary Unit (1 bedroom) Lots 2, 47, 51, 52, 60, 64, 67 Very-Low Income - 1 unit Plan 3 -Secondary Unit (I bedroom) Lot 69 All lots without above symbols are market-rate. # Lot Number * Resident Parking in Driveway for Affordable Secondary Unit =-A Plan and Elevation 1nOSZtCZ120 DUBLIN, CALIFORNIA Le'L'R#' ~ruz~ .,;,o,~,,.~-o~ SITE DEVELOPMENT REVIEW INCLUSIONARY HOUSING EXHIBIT Rev. Lune 4, 2009 o' so' 100' zoo' ~IIiKArBci~~ •a na-mm SHEET NUMBER OJ 19319-0 N ..~ ~~ Legend: 7.7 7~7 74J * Plan 3 with Secondary * w no Affordable Unit ~ y ~~co ~ xl Units occupied 111 ,,, ~ _ m :\:; _ 111 UO 171 U1 171 IN 71f 774 2tl ~ ~ ~ FORiNO COURT FORINO DRIVE .L ~. ~ m I1r m r71 177 T r~ ~ m .~' 7x ^~ 771 m ~ry 177 1St !~ 71t 717 110 Itl gyT10 f ~ O F !b 101 1 I IM n ~. f4! ~ 1 p !d9 17 f75 1 I6 ~y ~l 111 lu fll 117 111 lU 110 lI1 177 /R In r-. ~ /u /7 ~ PALATINO COURT Itl 151 ui O ~ 11 t l1 II Ill II 1 1 7 7 ('1 [n Itl lA ~ '~ 41 IA ~ !]0 !N ~L y 1 p 1U ~ F T m IN 177 u1 147 ` T ~ 111 /O p ~? #. G /tl * 711 tl r71 N 1 14 7 It( II + ~ ~ Iq IIt f7v n ~ O M Im /01 Im fm 107 /n P.( 1~ n ~ MONTELENA COURT ~, /w 1 ~ ~ V PN~VCO~ 141 m ~ yy JPtiti T _ i ~ ~ m1 ~ x, s1 ~~ , ` _ ~k ~~ / ~ v Y t± ~ y l 7 4-23-2009 13:53:20 Ivilhover P:\19319\sdr\Neighborhood 8\Amend\Aff-Housing-Agmt-Sec-Unit-site-dev-plcn090422.dwg ,S'~l Yno II !dt <POSltQ1Z0 DUBLIN, CALIFORNIA ruu aiu.cnmen~, rz4in~ni+cm . ~iane+.arni SITE DEVELOPMENT PLAN FOR SECONDARY AFFORDABLE UNITS April 2009 VY 0' 100' 200' 400' 4A~ SHEET N[JMBEA 19319-0 N d~ Z~9 0~~25 EXHIBIT B Revised Exhibit 4 to the Agreement ["Preliminary Construction Schedule"] Positano First Phase Preliminary Construction Schedule Amendment #3 PHASE ONE Income Level Moderate Low Ve Low Sub-Total BMR Market Total Market Rate - Neighborhood A 30 30 Market Rate -Nei hborhood B 26 26 4 Bedroom BMR 1 1 0 2 2 Seconda Unit - 1 bedroom 0 7 1 8 8 Seconda Unit -Studio 0 0 0 0 0 Total 1 8 1 10 56 66 Percanta a of Phase Units 2% 12% 2% 15% 85% 100% PHASE TWO Income Level Moderate Low Ve Low Sub-Total BMR Market. Total Market Rate - Neighborhood A 20 20 Market Rate -Nei hborhood B 64 64 4 Bedroom BMR 0 0 0 0 0 Seconda Unit -1 bedroom 0 0 0 0 0 Seconda Unit -Studio 0 0 0 0 0 Total 0 0 0 0 84 84 Percanta a of Phase Units 0% 0% 0% 0% 100% 100% PHASE THREE Income Level Moderate Low Ve Low Sub-Total BMR Market Total Market Rate - Neighborhood A 20 20 Market Rate -Nei hborhood B 85 85 Cumulative Affordable Cumulative Total Units as % of Total Lots Affordable Total Lots Units 58 10 17.2% Cumulative Affordable Cumulative Total Units as % of Total Lots Affordable Total Lots Units 142 10 7.0% Cumulative Affordable Cumulative Total Units as % of Total Lots Affordable Total Lots Units 247 31 12.6% 'C) N N 4 Bedroom BMR 0 0 0 0 0 Seconda Unit - 1 bedroom 0 0 0 0 0 Seconda Unit -Studio 0 0 21 21 21 Total 0 0 0 21 105 126 Percanta a of Phase Units 0% 0% 0% 0% 83% 83% N 1°~ N N z~2~ 225 EXHIBIT C Revised Memorandum of Agreement for the Construction of Inclusionary Units 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 2Z3,x~2z5 Space above this line for Recorder's use MEMORANDUM OF 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 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 16th day of June, 2009, by and between the City of Dublin, a municipal corporation (hereafter "City") and Dublin RE Investors, LLC, a California limited liability company, and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). 1. .Pursuant to the Affordable Housing Agreement for the Constriction 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, and on June 16, 2009, 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 Agreement sets out the specific obligations for the construction of Inclusionary Units and payment of fees in lieu thereof in conjunction with the initia1416- residential parcel phase of the development 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 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 2~'+~ 2a5 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. 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 Name: '~ ~' ~ ~ PvJ R ~~ ~-C g; ~~cG ?2Cs ~ ~~r1~ BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner ~---- ame: ~E~ G --~A~J~~r~c.E Its: V tc.C- P<z~s ~ of ~ ~~~~Z~ State of California County of Contra Costa On ~ ~ ~ / before me, Nancy E. Embrey, Notary Public Date n Here In""sent Name and Title of the Officer personally appeared ~ ~~ F ~f'T W iL ~ IV C~~ Name(s) of Signer(s) NANCY E. EMBREY Commission # 1578043 -,~ Notary Publ~ - Callfomla Contra Costa County ~My Comm. Expires Jun 8, 2009 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person`(, whose name-subscribed to the thin Instrument and acknowledged to me that ~y executed the same i is ~irauthorized capacity(~'S), and that by is ignature`y~j on the instrument the person~j, or the entity upon behalf of which the person'( acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature~~ ~' ,~7g ~ f /g lure of Notary Public ®1r" 1 ~®1VFi~ Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this /orm to another document. Description of Attached Document ~ ~} ~ - '~~~-r. v a ~~-Q~ Title or Type of Document: ~ N ~ Document Date: CD l ~ ~o ~ ~ 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 Guardian or Conservator Other: Igner Is Representin Signer Is Representing Number of Pages: Signer's Name: ^ Individual LI Corporate Officer -Title(s): ^ Partner - ^ Limited O General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: e lop v( thumb here ©2007 National Notary Association-9350DeSotoAve.,P.OBox2402-Chatsworth,CA91313-2402•www.NationalNataryorg Iteml15907 Reonier:CallToll-Free 1.600-676-fi827