HomeMy WebLinkAbout4.17 East Ranch Affordable Housing Agreement (PLPA-2020-00028)STAFF REPORT
CITY COUNCIL
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Agenda Item 4.17
DATE:August 15, 2023
TO:Honorable Mayor and City Councilmembers
FROM:Linda Smith, City Manager
SUBJECT:East Ranch Affordable Housing Agreement (PLPA-2020-00028)Prepared by:Jason Earl, Senior Management Analyst and Amy Million,Principal Planner
EXECUTIVE SUMMARY:The City Council will consider approval of an Affordable Housing Agreement with TH East Ranch Dublin, LLC, an affiliate of Trumark Homes, LLC, associated with the development of the East Ranch project. The East Ranch project is the development of a 165.5-acre site with a 573-unit residential project consisting of six neighborhoods, two neighborhood parks totaling 11.5 acres, and a two-acre Public/Semi-Public site reserved for affordable housing located on Croak Road east of Fallon Road.
STAFF RECOMMENDATION:Adopt the Resolution Approving an Affordable Housing Agreement Between the City of Dublin and TH East Ranch Dublin, LLC, for the East Ranch Project.
FINANCIAL IMPACT:The costs associated with processing this request is borne by the Applicant. The Applicant’s inclusionary housing proposal includes the payment of in-lieu fees for 25 units based on the then current Affordable Housing In-Lieu Fee amount at the time of payment. The Applicant will also make an additional $500,000 contribution to the Affordable Housing Fund in consideration for other regulatory benefits granted by the City to the project. Based on the current in-lieu fee of $241,131/unit, this payment would be $6,028,275, and the additional $500,000 brings the total payment to $6,528,275.
DESCRIPTION:BackgroundThe 165.5-acre East Ranch project site is an undeveloped parcel located within the Fallon Village area of the Eastern Dublin Specific Plan. The site is located north of Interstate 580, east of Fallon Road and the Jordan Ranch development, south of the Positano development, and adjacent to the City’s eastern city limit as shown in Figure 1 below. The Applicant has approvals to construct a
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573-unit residential project consisting of six neighborhoods (including 459 conventional single-family homes, 14 zero-lot-line single-family duet homes, and 100 townhomes)two neighborhood parks totaling 11.5 acres, and a two-acre Public/Semi-Public site.Please refer to Attachment 3 for a summary of the entitlement history.Figure 1.Vicinity Map
The project is subject to the City’s Inclusionary Zoning Regulations (DMC Chapter 8.68). These regulations allow for an alternative method of compliance at the discretion of the City Council (DMC 8.68.040.E).On April 18, 2023, the City Council received a presentation from the Applicant and providedfeedback regarding their proposal to address the Inclusionary Zoning Regulations through an alternative method of compliance,and formation of a Community Facilities District (CFD)(Attachment 3). The City Council expressed general support of the affordable housing proposal and the formation of a services CFD but requested additional information regarding the facilities CFD.On June 20, 2023, the City Council further considered the request for a facilities CFD. During that meeting, the Applicant agreed to contribute an additional $500,000 payment as part of their affordable housing proposal.
AnalysisThe following is a summary of the Applicant’s proposal to satisfy the Inclusionary Zoning Regulation:
Payment of in-lieu fees for 25 units (to satisfy 35% of the affordable requirement). Based on the current in-lieu fee of $241,131/unit (the in-lieu fee is adjusted annually on July 1
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based on an inflation factor, and the amount owed is calculated at the time of building permit issuance), this payment would be $6,028,275;
Construction of 18 deed-restricted units at the “moderate income” level. These units would consist of 14 zero-lot single-family homes (i.e., duets) and four townhomes (to satisfy 25% of the affordable requirement);
Dedication of the two-acre Semi-Public site for a future affordable housing project to satisfy the requirement for 36 units (to satisfy 40% of the affordable requirement);
Construction of 50 deed-restricted, attached accessory dwelling units with projected rents at low income; and
An additional contribution of $500,000 into the City’s Affordable Housing Fund, bringing the total payment to the City’s Affordable Housing Fund to $6,528,275.An Affordable Housing Agreement has been prepared for the project, which sets forth the terms and the affordable housing requirements for the project. The Resolution approving the Affordable Housing Agreement is included as Attachment 1 with the agreement included as Attachment 2.
ENVIRONMENTAL REVIEW:Government Code Section 65457 and California Environmental Quality Act (CEQA) Guidelines Section 15182(c) exempt from further environmental review certain residential projects that are consistent with a specific plan for which an environmental impact report (EIR) has been certified. Prior CEQA analysis for the project area includes: 1) the Eastern Dublin General Plan Amendment and Specific Plan EIR (1993); 2) the East Dublin Properties Stage 1 Development Plan and Annexation Supplemental EIR (2002); and 3) the Fallon Village Supplemental EIR (2005). Collectively, these three documents are referred to as the “EDSP EIRs.”Pursuant to the requirements of the CEQA, the City determined that the East Ranch project qualifies for an exemption under Government Code Section 65457 and CEQA Guidelines Section 15182(c). The proposed project and Affordable Housing Agreement are consistent with the EDSP EIRs and the General Plan and EDSP land use designations for the project site. The CEQA Analysis in Support of Specific Plan Exemption prepared for the East Ranch Project dated November 4, 2021 determined that there is no part of the proposed Project that triggers the need to prepare a subsequent EIR or negative declaration pursuant to CEQA Guidelines Section 15162 or Public Resources Code section 21166. Therefore, the Affordable Housing Agreement qualifies for a specific plan exemption and does not require subsequent environmental review or the preparation of an additional CEQA document (EIR or MND).
STRATEGIC PLAN INITIATIVE:Strategy 2: Housing OpportunitiesObjective B: Facilitate production of affordable housing for lower income seniors, workforce, and special needs households.
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NOTICING REQUIREMENTS/PUBLIC OUTREACH:The City Council Agenda was posted.
ATTACHMENTS:1) Resolution Approving anAffordable Housing Agreement between the City of Dublin and TH East Ranch Dublin, LLC.2) Exhibit A to the Resolution –Affordable Housing Agreement 3) City Council Staff Report dated April 18, 2023 (without attachments)
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Attachment 1
Reso. No. XX-23, Item X.X, Adopted XX/XX/2023 Page 1 of 2
RESOLUTION NO. XX – 23
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN AFFORDABLE HOUSING AGREEMENT BETWEEN THE CITY OF DUBLIN
AND TH EAST RANCH DUBLIN, LLC, FOR THE EAST RANCH PROJECT
APN 905 -0002-002-00 and 905 -0002-001-01
WHEREAS,TH East Ranch Dublin, LLC (“Applicant’) is seeking approval of an Affordable
Housing Agreement for the 573-unit East Ranch Residential Project, on a 165.5-acre site
consisting of six neighborhoods, two neighborhood parks totaling 11.5 acres, and a two-acre
Public/Semi-Public site reserved for affordable housing located on Croak Road east of Fallon
Road; and
WHEREAS,the 165.5-acre Project site is located in eastern Dublin, directly east of the
Jordan Ranch development and south of Positano development, straddling the existing Croak
Road; and
WHEREAS,on March 14, 2023, the Planning Commission approved the Site Development
Review Permit (PLPA-2022-00018) for six neighborhoods that includes the construction of 459
conventional single-family homes, 14 zero lot line single-family homes, and 100 townhomes, and
a landscape master plan; and
WHEREAS, Condition of Approval #18 requires the Applicant to enter into an Affordable
Housing Agreement pursuant to Dublin Municipal Code Section 8.68 “Inclusionary Zoning
Regulations”; and
WHEREAS,the City’s Inclusionary Zoning Regulations require all new residential projects
of 20 units or more to construct 12.5% of the total number of units as affordable units. Pursuant
to Dublin Municipal Code Section 8.68.040.E a developer may request an alternative method of
compliance with the requirements of the Inclusionary Zoning Regulations at the discretion of the
City Council; and
WHEREAS,on April 18, 2023, the City Council received a presentation from the Applicant
regarding their proposed alternative method of compliance with the Inclusionary Zoning
Regulations and expressed general support for the proposal; and
WHEREAS,an Affordable Housing Agreement has been prepared for the project which
sets forth the method of compliance with the Inclusionary Zoning Regulations; and
WHEREAS,pursuant to the requirements of the California Environmental Quality Act
(CEQA), the City determined that the East Ranch project qualifies for an exemption under
Government Code Section 65457 and CEQA Guidelines Section 15182(c). The Affordable
Housing Agreement is consistent with Eastern Dublin Specific Plan EIRs and the General Plan
and EDSP land use designations for the project and qualifies for a specific plan exemption and
does not require subsequent environmental review.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin herby
approves the Affordable Housing Agreement between the City of Dublin and TH East Ranch
Dublin, LLC, for the East Ranch project attached as Exhibit A to this Resolution.
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Reso. No. XX-23, Item X.X, Adopted XX/XX/2023 Page 2 of 2
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
agreement, attached hereto as Exhibit A,and make any necessary, non-substantive changes to
carry out the intent of this Resolution.
PASSED, APPROVED AND ADOPTED this 15th day of August 2023, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Mayor
ATTEST:
_________________________________
City Clerk
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: Community Development Director
________________________________________________________________________
No fee for recording pursuant to
Government code Section 27383
AFFORDABLE HOUSING AGREEMENT
(East Ranch)
THIS AFFORDABLE HOUSING AGREEMENT is hereby entered into as of
_________________, 2023, by and between the City of Dublin, a California municipal corporation
(the “City”), and TH East Ranch Dublin, LLC, a California limited liability company (the
“Developer”).
RECITALS
A. Developer is the owner of 165.5 acres of undeveloped real property in the City of
Dublin located within the Fallon Village area of the Eastern Dublin Specific Plan, known as the
“East Ranch” (the “Development Site”). The Development Site is located north of Interstate 580,
east of Fallon Road and the Jordan Ranch development, south of the Positano development, and
adjacent to the City’s eastern boundary. The Development Site is legally described in Exhibit A
attached hereto.
B. Developer has proposed to develop a housing development on the Development
Site which will include approximately 459 conventional single family homes (“Single Family
Homes”), 14 zero-lot-line single family homes (“Zero Lot Line Homes”), 100 townhomes
(“Townhomes”), and 50 accessory dwelling units (“ADUs”) (together, the “East Ranch Project”).
C. The City has adopted inclusionary housing requirements pursuant to Chapter 8.68
of the Dublin Municipal Code (the “Inclusionary Housing Requirements”). The purpose of the
Inclusionary Housing Requirements is to create affordable housing opportunities in the City for
low- and moderate-income households. The City adopted the Inclusionary Housing Requirements
recognizing that the cost of new housing is so high that persons with very low-, low- and moderate-
incomes are increasingly unable to locate affordable housing in the City. Through the Inclusionary
Housing Requirements the City intends to achieve a balanced community with housing available
at all income levels.
D. The Inclusionary Housing Requirements require that residential projects with
twenty or more for sale units contain at least 12.5% low- and moderate-income units. The
Inclusionary Housing Requirements require that 40% of the affordable for sale units be sold at an
affordable housing cost to low-income households, and 60% of the affordable for sale units be sold
at an affordable housing cost to moderate income households. The Inclusionary Housing
Attachment 2
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Requirements permit alternate methods of compliance, allowing the developer to satisfy 40% of
the Inclusionary Housing Requirements through payment of an in lieu fee in accordance with the
City’s impact fee schedule, and allowing the developer to provide some or all of the remaining
units through land donation and other alternative means.
E. The Inclusionary Housing Requirements for the East Ranch Project require the
Developer to provide seventy-two (72) affordable units. The Developer has proposed, and the
City Council has approved, an alternate method of satisfying the Inclusionary Housing
Requirements which requires the Developer to (i) pay an in lieu fee based upon the City in lieu fee
in effect as of the date of this Agreement (currently $241,131 per unit), as annually adjusted by
inflation, in lieu of constructing twenty-five (25) inclusionary units (for a total in lieu fee of
$6,224,860.50), (ii) construct and sell fourteen (14) Zero-Lot-Line Homes and four (4)
Townhomes to Moderate Income Households at an Affordable Housing Cost, (iii) donate a two
acre site within the Development Site to the City or its designee to be used for the construction of
an affordable housing project, (iv) construct and sell fifty (50) accessory dwelling units which, if
rented, may only be rented to low income households at an affordable rent, and (v) pay an
additional fee of $500,000 to the City’s Affordable Housing Fund.
F. By this Agreement, the parties desire to set forth the manner by which Developer
shall satisfy the obligations applicable to the East Ranch Project under the Inclusionary Housing
Requirements.
NOW, THEREFORE, Developer and City hereby agree as follows:
1.Definitions and Interpretations. Terms used in this Agreement shall be defined
as set forth in Chapter 8.68 of the Dublin Municipal Code.
2.Payment of Fees.
(a)In Lieu Fees. Section 8.68.040.A of the Inclusionary Housing
Requirements provides that developers may satisfy up to forty percent of the Inclusionary Housing
Requirements through payment of an in lieu fee in accordance with the City’s impact fee schedule.
Developer shall satisfy its obligation under the Inclusionary Housing Requirements for twenty-
five (25) Inclusionary Units by paying fees to the City in lieu of constructing such units, equal to
the in lieu fee adopted by the City which is in effect as of the date of July 1, 2023 ($241,131 per
Inclusionary Unit), as such fee is annually adjusted for inflation as provided below (“In Lieu
Fees”). The foregoing adjustment for inflation shall be calculated as follows: the In Lieu Fees
payable hereunder shall be adjusted annually as of July 1 of each year based upon the greater of
the percentage change in the U.S. Department of Housing and Urban Development (HUD) Fair
Market Rent Limits for the Oakland-Fremont Metropolitan Area (Alameda County), or the
percentage change in the U.S. Bureau of Labor Statistics Consumer Price Index, All Urban
Consumers, for San Francisco-Oakland-Hayward. The foregoing In Lieu Fees shall be applicable
notwithstanding City’s adoption of a new fee structure for the Affordable Housing In Lieu fee after
July 1, 2023.
(b)Supplemental Fee. In addition to the In Lieu Fees, Developer shall pay City
a fee of $500,000 to be deposited into City’s Affordable Housing Fund (the “Supplemental Fee”).
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(c)Payment of Fees. The entirety of the In Lieu Fees and Supplemental Fee
shall be paid at the time of the issuance of the first building permits for the East Ranch Project
(excluding building permits issued for model homes). If the Developer fails to pay the In Lieu
Fees when due, the City may withhold any further City approvals for the East Ranch Project,
including without limitation building permits and certificates of occupancy.
3.Moderate Income Homes. Developer shall satisfy its obligation under the
Inclusionary Housing Requirements for eighteen (18) Inclusionary Units through the construction
and sale of fourteen (14) Zero Lot Line Homes and four (4) Townhomes to Moderate Income
Households (the “Moderate Income Inclusionary Units”) in accordance with the following
requirements:
(a)Exterior Materials and Exterior Architectural Design. Section 8.68.030.E
of the Inclusionary Housing Requirements provides that Inclusionary Units shall not be
distinguished by exterior design, construction, or materials. The exterior materials and exterior
architectural design of the Inclusionary Units shall be consistent with the market-rate units within
the East Ranch Project as reviewed and approved through the Site Development Review by the
Planning Commission’s approval of Resolution No. 23-02 on March 14, 2023; provided, however,
that minor changes to unit size may be approved by the Community Development Director through
a Site Development Review waiver. The City Council, in approving this Agreement, hereby finds
that the Moderate Income Inclusionary Units, in accordance with the design approved by the Site
Development Review, are not distinguished by exterior design, construction, or materials.
(b)Unit Location. Section 8.68.030 of the Inclusionary Housing Requirements
requires that Inclusionary Units be dispersed throughout the individual phase in which they are
constructed. A map that shows the location of the Inclusionary Units as proposed by the Developer
is attached hereto as Exhibit B (the “Inclusionary Unit Map”). Developer shall construct the
Moderate Income Inclusionary Units in the locations identified in the approved Inclusionary Unit
Map, which will satisfy Section 8.68.030 of the Inclusionary Housing Requirements. The
Community Development Director may administratively approve changes in the location of the
Moderate Income Inclusionary Units provided that he or she finds that the units are reasonably
dispersed as required by Section 8.68.030.E.
(c)Unit Bedrooms and Size. Section 8.68.030.E requires that the Inclusionary
Units reflect the range of numbers of bedrooms provided in the project as a whole. Each of the
fourteen (14) Moderate Income Inclusionary Units which are Zero Lot Line Homes shall have at
least three (3) bedrooms, and shall be at least 1,700 square feet in size consistent with the approved
Site Development Review. Each of the four (4) Moderate Income Inclusionary Units which are
Townhomes shall each have at least four (4) bedrooms, and shall be at least 1,900 square feet in
size consistent with the approved Site Development Review. The City Council, in approving this
agreement, hereby finds that the Moderate Income Inclusionary Units which meet the foregoing
requirements satisfy the unit size requirements of Section 8.68.030.E of the Inclusionary Housing
Requirements.
(d)Sales Price and Marketing. Developer shall sell the Inclusionary Units to
Moderate Income Households at sales prices that are Affordable Sales Prices, as defined in the
Inclusionary Housing Requirements, and are not greater than the maximum sales prices which are
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approved by the City. All units shall be marketed and sold in a manner that is consistent with the
Inclusionary Housing Requirements and Guidelines to the Inclusionary Zoning Ordinance.
(e)Marketing Plan. Developer shall prepare and receive City approval of a
Marketing Plan as required by Section 4.4 of the Guidelines to the Inclusionary Zoning Ordinance
prior to issuance of the first building permit in the Project (excluding building permits issued for
model homes).
(f)Resale Agreements. Prior to transferring ownership of a Moderate Income
Inclusionary Unit to a buyer, Developer shall require that the initial buyer and the City execute a
Resale Restriction and Option to Purchase Agreement (the “Resale Agreement”) in substantially
the form attached hereto as Exhibit C. The Resale Agreement shall serve as the agreement required
by Section 8.68.050.C of the Inclusionary Housing Requirements. Upon (i) the sale of a Moderate
Income Inclusionary Unit as a completed home in accordance with the terms of this Agreement
and (ii) the recordation of the Resale Agreement against such Moderate Income Inclusionary Unit,
Developer shall have no further obligations or liabilities with respect to such Moderate Income
Inclusionary Unit, including but not limited to, monitoring the compliance with this Agreement or
the Resale Agreement of the buyer of a Moderate Income Inclusionary Unit or any successor, and
responsibility for compliance with the Resale Agreement as to that Moderate Income Inclusionary
Unit shall thereafter be the burden of the then owner. Developer shall remain responsible for
compliance with this Agreement as to all other Moderate Income Inclusionary Units not yet sold.
The City and Developer agree that a breach of the Resale Agreement by a purchaser of a Moderate
Income Inclusionary Unit shall not constitute a default or breach by Developer.
(g)City Administrative Fee. Prior to the City’s execution of each Resale
Agreement with the initial buyer of a Moderate Income Inclusionary Unit, Developer shall pay the
City a City Administrative Fee, in an amount to be established from time to time by the City
Council. The City Administrative Fee is currently set at $1,708 per transaction and is subject to
periodic adjustment.
4.Donation of Affordable Housing Site. Section 8.68.040.C of the Inclusionary
Housing Requirements provides that developers may satisfy a portion of their Inclusionary
Housing Requirements through dedication of land to the City or a City-designated local non-profit
housing developer in lieu of construction of some or all of the required affordable units, if the City
Council finds that (1) dedication of land in lieu of constructing units is consistent with the goal of
creating, preserving, maintaining, and protecting housing for very-low, low- and moderate-income
households, (2) the dedicated land is useable for its intended purpose, is free of toxic substances
and contaminated soils, and is fully improved, with infrastructure, adjacent utilities, grading, and
all development-impact fees paid, excluding any inclusionary zoning ordinance fees, (3) the
proposed land dedication is of sufficient size to construct the number of Inclusionary Units that
the applicant would otherwise be required to construct, based on the size of lots in the subdivision
for which the applicant is meeting its obligation; and the market value of the land is equal to or
exceeds the difference between the value of a market-rate, 1200-square foot unit and the price at
which such a unit could be sold as an Affordable Unit (which amount shall be set forth in a
resolution adopted from time to time by the City Council) times the number of units required.
Developer shall satisfy its obligation under the Inclusionary Housing Requirements for thirty-six
(36) Inclusionary Units by conveying to City, or City’s designee (“City Designee”), fee title to that
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certain approximately 2.0 acre parcel of real property located on Croak Road east of Fallon Road
and further described in Exhibit D hereof (the “Donation Parcel”). Developer, City and City
Designee shall enter into an agreement for the donation and conveyance of the Donation Parcel,
substantially in the form of Exhibit E hereof, concurrently with the date of this Agreement (the
“Donation Agreement”). The Donation Agreement shall provide City with an option to acquire
the Donation Parcel if the City Designee fails to timely develop the Donation Parcel as an
affordable housing development. In the event that neither the City nor the City Designee elects to
acquire the Donation Parcel on or prior to the date set forth therefor in the Donation Agreement,
then Developer shall satisfy its Inclusionary Housing Requirements for thirty-six (36) Inclusionary
Units by other methods as permitted under the Inclusionary Housing Requirements. In such event
the City and the Developer shall meet and confer with respect to mutually acceptable alternative
methods of compliance with the Inclusionary Housing Requirements, which may include, without
limitation, the assignment of the City Designee’s rights under the Donation Agreement to another
mutually acceptable affordable housing developer.
5.Low Income Accessory Dwelling Units. In addition to the Developer’s
obligations pursuant to Sections 2 to 4 hereof, Developer shall provide for the construction of fifty
(50) attached accessory dwelling units which shall, if rented, be available and restricted to Lower
Income Households (the “Low Income ADU Inclusionary Units”) in accordance with the
following requirements:
(a)Unit Location. Developer shall construct the Low Income ADU
Inclusionary Units in the locations identified in the approved Inclusionary Unit Map (Exhibit B),
which will satisfy Section 8.68.030 of the Inclusionary Housing Requirements. The Community
Development Director may administratively approve changes in the location of the Low Income
ADU Inclusionary Units provided that he or she finds that the units are reasonably dispersed as
required by Section 8.68.030.E.
(b)Unit Bedrooms and Size. Each of the fifty (50) Low Income ADU
Inclusionary Units shall be at least 500 square feet in size consistent with the approved Site
Development Review, and shall have kitchen and bathroom facilities separate from the main
housing unit. The City Council, in approving this agreement, hereby finds that the Low Income
ADU Inclusionary Units which meet the foregoing requirements satisfy the unit size requirements
of Section 8.68.030.E of the Inclusionary Housing Requirements.
(c)Regulatory Agreements. Prior to transferring ownership to a buyer of a
single family home which includes a Low Income ADU Inclusionary Unit, Developer shall require
that the initial buyer and the City execute a Secondary Unit Regulatory Agreement and Declaration
of Restrictive Covenants (the “Regulatory Agreement”) in substantially the form attached hereto
as Exhibit F. The Regulatory Agreement shall serve as the agreement required by Section
8.68.050.C of the Inclusionary Housing Requirements. Upon the initial sale of a single family
home with a Low Income ADU Inclusionary Unit and the recordation of the Regulatory
Agreement against such home, Developer shall have no further obligations or liabilities with
respect to such Low Income ADU Inclusionary Unit, including but not limited to, monitoring the
compliance with this Agreement or the Regulatory Agreement by the owner of the home or any
successor, and responsibility for compliance with the Regulatory Agreement as to that Low
Income ADU Inclusionary Unit shall thereafter be the burden of the then owner. Developer shall
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remain responsible for compliance with this Agreement as to all other Low Income ADU
Inclusionary Units not yet sold. The City and Developer agree that a breach of the Regulatory
Agreement by a purchaser of a home with a Low Income ADU Inclusionary Unit shall not
constitute a default or breach by Developer. The Low Income ADU Inclusionary Units shall not
require owner-occupancy consistent with Section 8.80.030(M).
(d)City Administrative Fee. Prior to the City’s execution of each Regulatory
Agreement with the initial buyer of a single family home which includes a Low Income ADU
Inclusionary Unit, Developer shall pay the City a City Administrative Fee, in an amount to be
established from time to time by the City Council. The City Administrative Fee is currently set at
$1,708 per transaction and is subject to periodic adjustment.
6.Attorneys’ Fees. If legal action is necessary to enforce any provisions of this
Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and legal costs.
7.Amendments. This Agreement shall be amended only by a written instrument
executed by the parties hereto or their successors in interest. If Developer proposes a change to
this Agreement, Developer shall pay the City its reasonable costs, including attorneys’ fees,
incurred in negotiating such changes, and Developer shall, if requested by the City, provide the
City with a reasonable deposit to cover the City’s reasonable costs, upon Developer initiating such
negotiations.
8.Assignments and Transfers.
(a)Right to Assign. Developer may wish to sell, transfer or assign all or
portions of the Development Site to other developers (each such other developer is referred to as
a “Transferee”). In connection with any such sale, transfer or assignment to a Transferee,
Developer may sell, transfer or assign to such Transferee any or all rights, interests and obligations
of Developer arising hereunder and that pertain to the portion of the Development Site 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.
(b)Approval and Notice of Sale, Transfer or Assignment. The City Manager
shall consider and decide on any transfer, sale or assignment within thirty (30) days after
Developer’s notice thereof, provided all necessary documents, certifications and other information
are provided to the City Manager to enable the City Manager to determine whether the proposed
Transferee can perform the Developer’s obligations hereunder. Nothing herein shall be deemed to
limit the right of Developer to freely alienate or transfer all or any portion of the Development
Site, provided however, Developer shall not be released from liability under this Agreement unless
and until the approved Transferee shall have agreed in writing to be bound by and to comply with
the requirements of this Agreement and any documents executed hereunder and the City Manager
has approved of such Transferee in accordance with this Section 8(b). Notice of any such approved
sale, transfer or assignment (which includes a description of all rights, interests and obligations
that have been transferred and those which have been retained by Developer) shall be recorded in
the official records of Alameda County, in a form acceptable to the City Manager, concurrently
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with such sale, transfer or assignment. In the event the City Manager fails to make such
determination within such thirty (30) day period, City shall be deemed to have approved the
assignment and assumption of this Agreement by the proposed Transferee and Developer shall be
released pursuant to Section 8(c) below.
(c)Effect of Sale, Transfer or Assignment. Developer shall be released from
any obligations and liability hereunder sold, transferred or assigned to a Transferee pursuant to
Section 8(a) of this Agreement, provided that: (a) such sale, transfer or assignment has been
approved by the City Manager pursuant to Sections 8(a) and 8(b); and (b) such obligations are
expressly assumed by Transferee and provided that such Transferee shall be subject to all the
provisions hereof.
9.Successors. Except as specifically provided in this Agreement, this Agreement
shall bind and inure to the benefit of all successors and assigns of the parties. Developer shall
provide notice to the City of the names and mailing addresses of any such successors or assigns.
10.Hold Harmless. Developer shall hold City, its elective and appointive boards,
commissions, officers, employees and agents harmless from and against any or all loss, liability,
expense, claim, costs, suits, damages of every kind, nature and description, to the extent caused by
Developer’s performance of or failure to perform its obligations pursuant to this Agreement.
Developer shall defend City and its elective and appointive boards, commissions, officers,
employees and agents from and against any suits or actions at law or in equity for damages caused
or alleged to have been caused, by Developer’s performance of or failure to perform its obligations
pursuant to this Agreement.
11.Enforcement. If the Developer defaults in the performance or observance of any
covenant, condition, restriction or obligation of the Developer as set forth in this Agreement, and
such default remains uncured for a period of thirty (30) days after notice thereof is given by the
City (or such longer period as may be necessary to cure the default, provided that Developer
commence the cure within the thirty (30) day period and diligently prosecutes the cure to
completion), the City may take any one or more of the following steps:
(a)By specific performance or other action or proceeding at law or in equity,
require the Developer to perform its obligations under this Agreement or enjoin any acts or things
which may be unlawful or in violation of the rights of the City hereunder.
(b)Take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations, covenants, conditions and restrictions of the Developer under
this Agreement.
If Developer transfers any portion of the project in bulk and a Transferee defaults under
this Agreement, the City shall exercise the foregoing remedies only with respect to the defaulting
Transferee and its portion of the project; and so long as Developer has not otherwise defaulted
hereunder, the City shall not seek to exercise any rights and remedies against Developer.
12.Corporate Authority. If Developer is a corporation, each individual signing this
Agreement on behalf of that corporation represents and warrants that each of them is duly
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authorized to execute and deliver this Agreement on behalf of the corporation and that the
Agreement is binding on the corporation in accordance with its terms.
13.Notices, Demands and Communications Between the Parties. Any and all
notices, demands or communications submitted by any Party to another Party pursuant to or as
required by this Agreement shall be proper if in writing and dispatched by messenger for
immediate personal delivery, or by registered or certified United States mail, postage prepaid,
return receipt requested, or by a reputable overnight courier such as FedEx, to the address of City
and Developer, as applicable, as set forth below. Such written notices, demands and
communications may be sent in the same manner to such other addresses as either Party may from
time to time designate as provided in this Section. Any such notice, demand or communication
shall be deemed to be received by the addressee, regardless of whether or when any return receipt
is received by the sender or the date set forth on such return receipt, on the day that it is dispatched
by messenger for immediate personal delivery, two (2) calendar days after it is placed in the United
States mail as heretofore provided, or one (1) calendar day after it is submitted to a reputable
overnight courier.
If to Developer: TH East Ranch Dublin, LLC
3001 Bishop Drive, Suite 100
San Ramon, CA 94583
Attention: Tony Bosowski, Division President
And a copy to: TH East Ranch Dublin, LLC
3001 Bishop Drive, Suite 100
San Ramon, CA 94583
Attention: Legal Department
And a copy to: Jackson Tidus
2030 Main Street, 12th Floor
Irvine, CA 92614
Attention: Sonia Lister, Esq.
If to City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
14.Entire Agreement. This Agreement contains the entire understanding between the
parties relating to the transaction contemplated hereby, and all prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are merged herein and
shall be of no further force or effect. No provision of this Agreement may be amended, waived,
or added except by an instrument in writing signed by the Parties hereto.
15.Incorporation of Exhibits. All exhibits referred in this Agreement are
incorporated herein by reference.
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16.Counterparts. This Agreement may be executed in counterparts, which when
taken together shall constitute a single signed original as though all parties had executed the same
page.
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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:
Linda Smith, City Manager
Attest
Marsha Moore, City Clerk
Approved as to Form
John Bakker, City Attorney
TH EAST RANCH DUBLIN, LLC, a
California limited liability company
By:
Its:
783
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STATE OF CALIFORNIA )
)
COUNTY OF __________________ )
On ____________________, before me, ___________________________, Notary
Public, personally appeared ______________________________________, who proved to me
on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
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.
______________________________________
Name: _______________________________
Notary Public
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
784
EXHIBIT A
Development Site Legal Description
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EXHIBIT B
Inclusionary Unit Map
Attached
787
10001000
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NEIGHBORHOOD PARK
NEIGHBORHOOD PARK
OPEN SPACE
(BASIN)
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(WETLAND)
OPEN SPACE
(BASIN)
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EAST RANCH DUBLIN, CA 05/16/2023
AFFORDABLE UNIT LOCATIONS
-DEED RESTRICTED ADU
NEIGHBORHOOD SUMMARY
NEIGHBORHOOD TYPICAL LOT
SIZE UNITS GROSS
ACREAGE (±)DENSITY
1 65'x100'99 30.1 3.3 DU/AC
2 55'x95'96 23.4 4.1 DU/AC
3 50'x110'85 19.5 4.5 DU/AC
4 49.5'x80'85 16.8 5.1 DU/AC
5 48'x70' Cluster 94 17.6 5.4 DU/AC
6 Attached Multi-Family 100
(Includes 4 Affordable Units)10.4 9.6 DU/AC
1, 2, 3, & 5 Zero-Lot Single Family
Units (Affordable)14 (2)
Croak Rd and Central
Pkwy Extension 8.0
TOTAL 573 125.8 4.5 du/ac
NOTE:
1)UNIT MIX SHOWN IS PRELIMINARY. FINAL NEIGHBORHOOD UNIT COUNT WILL BE DETERMINED
DURING SDR PROCESS, BUT THE TOTAL NUMBER OF UNITS WILL NOT EXCEED 573.
2)ZERO-LOT LINE AFFORDABLE UNITS ARE TO BE DISPERSED THROUGHOUT SITE PLAN AND
INCLUDED IN THE TOTAL LOT COUNT
78
8
EXHIBIT C
Resale Restrictions and Option to Purchase Agreement
Attached
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789
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Clerk
OPTION AGREEMENT
This Option Agreement ("Agreement") is entered into as of ____________, by and
between the City of Dublin, a municipal corporation ("City"), and [Eden Housing, Inc., a
California nonprofit public benefit corporation] ("Owner").
RECITALS
A. Owner is concurrently with this Agreement acquiring fee title to that certain real
property located on Croak Road east of Fallon Road in the City of Dublin, California, as more
particularly described in Exhibit A attached to this Agreement ("Property").
B.The Property is located within the East Ranch project which is being developed
by TH East Ranch Dublin, LLC, a California limited liability company ("Market Rate
Developer”). Market Rate Developer and City have entered into an “Affordable Housing
Agreement,” dated as of ________________, 2023, which requires that Market Rate Developer
convey the Property to City or its designee to satisfy a portion of its inclusionary housing
requirements applicable to the East Ranch project pursuant to Chapter 8.68 of the Dublin
Municipal Code (the “Inclusionary Housing Requirements”).
C. Pursuant to the Affordable Housing Agreement, Owner, City and Market Rate
Developer have entered into a certain “Donation Agreement” dated _______________, 2023,
which provides for the Market Rate Developer to donate the Property to Owner.
D.Owner intends to construct an affordable housing project on the Property
consisting of approximately ____ affordable rental housing units for very low and low income
families, and related improvements (the “Development”).
E.This Agreement gives the City an exclusive right and option to purchase the
Property from Owner, which may be exercised by the City if the Owner fails to commence
construction of the Development and record a Regulatory Agreement against the Property on or
before _________________.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES
CONTAINED IN THIS AGREEMENT, THE PARTIES AGREE AS FOLLOWS:
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Section 1. Grant of Option. Owner grants to the City the exclusive right and option to
purchase the Property for the consideration and under the terms and conditions set forth in this
Agreement (the "Option").
Section 2. Term and Exercise of Option.
a.Option Term. The term of the Option ("Option Term") shall be for a period
commencing on the date this Agreement is recorded and ending on the earlier of the following
events: (i) the closing of Owner’s construction loans necessary for Owner to commence
construction of the Development (“Construction Loans”); and (ii) the date this Option is
terminated in writing by the City. Owner shall provide City with thirty (30) days’ prior written
notice of the closing of the Construction Loans.
b.Exercise of Option. The City may exercise the Option only in the event that (i)
the Owner fails or refuses to record a Regulatory Agreement (as defined in the Donation
Agreement) against the Property in the form acceptable to the City on or before
_______________________________, (ii) the Owner attempts to affect a “Transfer” (as defined
below) at any time prior to the recordation of the Regulatory Agreement; or (iii) the Owner fails
to close on the Construction Loans for the Development necessary for Owner to commence
construction of Development on or before _______________________________. The
foregoing periods in this subsection may be extended in writing by the City in its sole discretion.
“Transfer” is defined as (i) directly or indirectly, voluntarily, involuntarily or by operation of law
making or attempting any total or partial sale, transfer, conveyance, assignment or lease of the
whole or any part of the Property or the improvements located on the Property; or (ii) a transfer
of the beneficial interest of more than twenty-five percent (25%) in aggregate of the ownership
and /or control of Owner at time of entering into this Agreement, taking all transfers into account
on a cumulative basis; provided however, neither the admission of an investor limited partner,
nor the transfer by the investor limited partner to subsequent limited partners shall be restricted
by this provision. Owner shall give the City thirty (30) days’ written notice prior to any
Transfer. The City may exercise the Option by giving written notice to Owner of its exercise of
the Option ("Option Notice").
c.Termination. Upon termination of the Option at the end of the Option Term, the
City Manager shall sign and deliver in recordable form a quitclaim deed or such other document
as may be reasonably required by the Owner to evidence the termination of the Option. The
parties acknowledge that the quitclaim deed or other such document must be recorded
concurrently with the close of escrow for the Construction Loans.
Section 3. Purchase of the Property.
a. Purchase Price. On the date specified in the Option Notice (which shall not be
earlier than thirty (30) days after the date of the Option Notice), the Owner shall sell the Property
to the City for the following consideration: the actual and reasonable amount paid by Owner to
third parties for Development-related drawings, plans, specifications, studies, reports and other
instruments (collectively, “Plans”). The Owner’s rights with respect to all Plans relating to the
791
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development of the Property shall be assigned to the City pursuant to the Assignment of
Agreements executed by Owner in favor of the City at the time of the closing of the sale of the
Property by Owner to the City.
b. Execution of Deed. As soon as practicable, but in no event later than the date
specified in the Option Notice for the purchase and sale of the Property, the Owner shall execute
a grant deed (the "Deed") conveying to the City the Property and all improvements located on
the Property which shall be recorded in the Official Records of the County of Alameda (the
"Official Records").
c.Expenses. All city and county documentary transfer tax and conveyance taxes to
the extent they are not exempt pursuant to the Revenue and Taxation Code, and recording
charges for the Deed (if any) shall be borne by Owner. The cost of the Title Policy (as defined
below) shall be borne by the City. All other expenses, fees or costs (except for attorneys' fees
and costs) incurred in close of escrow for the purchase and sale of the Property pursuant to this
Agreement shall be borne by the City. Each party shall bear its own attorneys' fees and costs.
d.Proration of Taxes. Real property taxes, if any, on the Property shall be prorated
as of the date of recordation of the Deed. Mello-Roos and other like assessments on the Property
shall be similarly prorated and Owner's share shall be fully paid prior to recordation of the Deed.
e.Title Insurance. Should the City exercise the Option, no later than the time of the
recording of the Deed pursuant to subsection (b) above, the City shall cause a title company of
the City's choice to issue a CLTA or ALTA policy of title insurance (the "Title Policy") insuring
fee title to the Property to be vested in the City, subject only to those encumbrances, conditions,
or exceptions acceptable to the City in its reasonable discretion (“Permitted Exceptions”).
Permitted Exceptions shall include all encumbrances, conditions and exceptions approved by the
City under Section 20 below, any regulatory agreements and other deeds of trust or other security
instruments securing debt on the Property approved by the City, or any other instruments
recording with the prior written approval by the City. Owner shall be responsible for removing
from the Property title any encumbrances, conditions, or exceptions other than Permitted
Exceptions prior to the closing of the conveyance of the Property to the City.
Section 4. Assignment of Option. Neither the Owner nor City may assign its rights or
obligations under this Agreement without the prior written consent of the other party. The City
hereby consents to an assignment by Owner that complies with Permitted Transfers as defined in
the Regulatory Agreement. Any assignment of this Agreement not authorized under this section
shall be null and void.
Section 5. Further Documents. Upon the reasonable request of the other party, each party
will execute, acknowledge and deliver or cause to be executed, acknowledged and delivered,
such further instruments and documents as may be reasonably necessary in order to carry out the
intent and purpose of this Agreement, including escrow instructions.
792
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Section 6. Notices. All notices or other communications made pursuant to this Agreement
shall be in writing and shall be deemed properly delivered, given or served to the parties at the
following addresses when (a) mailed by certified mail, postage prepaid, return receipt requested;
(b) sent by express delivery service, charges prepaid with a delivery receipt; or (c) personally
delivered when a delivery receipt is obtained:
City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
Owner: Eden Housing, Inc.
22645 Grand Street
Hayward, California 94541-5031
Attention: President
All notices so delivered, mailed or sent shall be deemed received as of the date shown on the
delivery receipt as the date of delivery or the date delivery was refused. Either party may change
its address for the purposes of this paragraph by giving prior written notice of the change to the
other party in the manner provided in this paragraph.
Section 7. Binding Effect. This Agreement and its terms and conditions shall be binding
upon and inure to the benefit of the parties to this Agreement and their respective permitted
successors and assigns.
Section 8. Time. Time is of the essence of this Agreement.
Section 9. Attorneys' Fees. In any action between the City and Owner to enforce or interpret
any of the terms of this Agreement, the prevailing party shall be entitled to recover costs of suit
and expenses, including, without limitation, reasonable attorneys' fees.
Section 10. Eminent Domain. Notwithstanding any other provision of this Agreement, if at
any time prior to execution and recordation of the Deed, any portion of the Property shall be
taken by eminent domain or is the subject of eminent domain proceedings (either threatened in
writing or commenced), and regardless of whether the City has exercised the Option, then the
City shall have the right to terminate this Agreement upon written notice to Owner, whereupon
the parties shall have no further obligations under this Agreement.
Section 11. Exhibits. All exhibits attached to this Agreement and referred to in this
Agreement are incorporated into this Agreement by this reference as though they were fully set
forth in this Agreement.
Section 12. Captions. The captions of the paragraphs of this Agreement are for convenience
and reference only, and the words contained in the captions shall in no way be held to explain,
793
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modify, amplify or aid in the interpretations, constructions or meaning of the provisions of this
Agreement.
Section 13. Entire Agreement; Counterparts. This Agreement contains the entire agreement
between the parties respecting the matters set forth, and supersedes all prior agreements between
the parties respecting such matters. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall constitute one and the
same Agreement.
Section 14. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended to confer to any person, other than the parties and their permitted successors and
assigns, any rights or remedies under or by reason of this Agreement.
Section 15. Waiver. No provision of this Agreement shall be deemed waived by a party
unless such waiver is in writing and signed by the party making the waiver. Failure of either
party at any time to require performance of any provision of this Agreement shall not limit that
party’s right to enforce the provision unless the waiver is made in writing. Waiver of any breach
of a provision shall not be a waiver of any succeeding breach of the provision or a waiver of the
provisions itself or of any other provision.
Section 16. Authority of Signatories. Each of the parties to this Agreement represents and
warrants to the other party that the persons who have executed this Agreement have been
authorized to do so by the party on whose behalf the party is signing. All documents to be
delivered under this Agreement will be executed by an authorized person. Each party has a good
an legal right to enter into this Agreement and to perform all covenants of that party contained in
this Agreement.
Section 17. Governing Law. This Agreement shall be governed and constructed in
accordance with California law.
Section 18. Amendments. This Agreement may only be amended in writing signed by all
parties.
Section 19. Brokers. Each party will defend, indemnify, and hold the other party harmless
from any claim, loss, or liability made or imposed by any other party claiming a commission or
fee in connection with this transaction and arising out of that party’s own conduct.
Section 20. Title Report and Owner’s Representations and Warranties. Prior to entering into
this Agreement, Owner shall provide City with a copy of a current title report for the Property
(“Title Report”). The City’s entering into this Agreement is subject to its approval of the Title
Report and any exceptions shown in the Title Report.
Owner represents and warrants that (a) except for the matters shown in the Title Report, no
leases, occupancies, tenancies, or licenses exist that affect the Property; (b) to the best of
Owner’s knowledge, there are not presently any actions, suits, or proceedings pending or,
threatened against or affecting the Property or the interest of Owner in the Property or its use or
794
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that would affect Owner’s ability to consummate the transaction contemplated in this
Agreement; (c) there are not any outstanding and unpaid arbitration awards or judgments
affecting title to any portion of the Property, and Owner shall promptly notify City of any of
these matters arising during the term of this Agreement; and (d) to the best of Owner’s
knowledge, there are not presently any pending or threatened condemnation, eminent domain, or
similar proceedings affecting the Property.
Section 21. Owner’s Conduct During Term of Agreement. During the term of this
Agreement, Owner shall comply with the following terms relating to the Property: (a) Owner
shall pay for all labor and work performed and all material furnished at Owner’s request or on
Owner’s behalf, and there shall be no claim for which a mechanic’s, materialman’s, or similar
lien can be claimed by any person or firm against the Property as a result of any act of Owner;
(b) Owner shall not affirmatively take any actions constituting waste of the Property, and shall
not excavate, mine, or otherwise materially alter the Property; (c) Owner shall not enter into any
lease, occupancy, tenancy, or license agreement affecting the Property, without City’s prior
written consent; and (d) Owner shall not incur any obligations or liabilities or enter into any
transactions that will affect the Property without the prior written consent of City which consent
shall not be unreasonably withheld.
Section 22. Owner Indemnity of City. Owner shall indemnify, defend and hold harmless the
City, any City agencies, and their respective elected and appointed councils, boards,
commissions, officers, agents, employees, volunteers and representatives from any and all loss,
liability, fines, penalties, forfeitures, costs and damages and from any and all claims, demands
and actions in law or equity (including attorneys' fees and litigation expenses) by any person or
entity, directly or indirectly arising or alleged to have arisen out of or in any way relating to the
Property during the term of this Agreement. This indemnity provision shall survive termination
of this Agreement.
Section 23. Hazardous Substances. Prior to entering into this Agreement, Owner shall
provide City with a copy of a Phase 1 Environmental Assessment Report for the Property. The
City’s entering into this Agreement is subject to its approval of the environmental condition of
the Property. Owner warrants to City that, except as provided in the Hazards Report, to the best
of Owner’s actual knowledge, no Hazardous Substances have been disposed of or released into,
on, or under the Property; provided however said warranty is subject to the following limitations:
Owner has not made or purported to have made any independent investigations or testing for
Hazardous Substances on the Property, has not been present on the Property at all times, and
shall only be accountable under this Agreement for any misrepresentation as to actual, not
constructive, knowledge of the Hazardous Substances on the Property.
Section 24. City Remedies for Breach. The City shall have the right to exercise all remedies
available under law and equity for any breach of this Agreement by Owner.
795
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IN WITNESS WHEREOF, the City and Owner have executed this Agreement as of the date first
written above.
OWNER:
By: ______________________
CITY:
CITY OF DUBLIN, a municipal corporation
By: ____________________________
Linda Smith, City Manager
796
EXHIBIT A
Property Description
797
A notary public or other officer completing
this certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California )
) ss.
County of _____________ )
On_____________________, 20____ before me, _____________________, a Notary Public, in
and for said State and County, personally appeared _______________________, who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
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.
_______________________________
NOTARY PUBLIC
5428388.3
798
EXHIBIT D
Legal Description of Donation Parcel
[To Be Inserted]
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799
EXHIBIT E
Donation Agreement
Attached
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800
1
REAL PROPERTY DONATION AGREEMENT
This Real Property Donation Agreement (this “Agreement”) is entered into as of
______________, 2023 (the “Effective Date”), by and among TH East Ranch Dublin, LLC, a
California limited liability company (the “Developer”), the City of Dublin, a California
municipal corporation (the “City”), and [Eden Housing, a California nonprofit public benefit
corporation] (the “the Nonprofit”). Developer, City and the Nonprofit are individually referred
to herein as a “Party,” and collectively referred to herein as the “Parties.”
RECITALS
A. Developer is the owner of 165.5 acres of undeveloped real property in the City of
Dublin located within the Fallon Village area of the Eastern Dublin Specific Plan, known as the
“East Ranch.” Developer has proposed to develop a master planned community on the East Ranch
that will include approximately 573 housing units and associated amenities and infrastructure (the
“East Ranch Project”).
B. In connection with Developer’s proposed development of the East Ranch Project,
Developer has entered into an “Affordable Housing Agreement” with City, dated ______________,
2023, which sets forth the manner by which Developer shall satisfy the City’s inclusionary housing
requirements applicable to the East Ranch Project. Section 4 of the Affordable Housing Agreement
requires Developer to donate a two acre parcel of land to City or City’s designee, to be used as the
site of an affordable housing project.
C. Developer desires to satisfy its obligations under Section 4 of the Affordable Housing
Agreement by agreeing to donate a certain approximately 2.0 acre parcel of real property located on
Croak Road east of Fallon Road, and further described in Exhibit A hereof (the “Property”).
D. City desires to designate the Nonprofit as the entity to acquire the Property from
Developer in accordance with Section 4 of the Affordable Housing Agreement. In the event that the
Nonprofit elects not to acquire the Property, or do not satisfy the requirements hereunder for the
acquisition of the Property, the City intends to retain the right to acquire the Property from
Developer itself.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged by the Parties, Developer, City and the Nonprofit hereby agree as
follows:
1. INCORPORATION OF RECITALS AND EXHIBITS. The Recitals set forth
above and the Exhibits attached to this Agreement are each incorporated into the body of this
Agreement.
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2
2. DONATION.
2.1 Donation of Property. Subject to the terms and conditions set forth herein,
Developer hereby agrees to donate the Property to the Nonprofit, and the Nonprofit hereby agrees to
acquire the Property from Developer. The Property shall include the following:
(a) All of Developer’s right, title and interest, if any, in and to all
rights, privileges, tenements, hereditaments, rights-of-way, easements, licenses, appurtenances,
water, oil, gas and mineral rights, subsurface rights, development rights, permits, approvals, air
rights, and water and riparian rights belonging or appertaining to the Property or any
improvements thereon.
(b) All improvements on the Property, if any.
(c) All of Developer’s interests, if any, in and to all personal property,
tangible or intangible (including, without limitation, trade names, trademarks or intellectual
property, warranties, guarantees, plans, specifications, architects’, engineers’, and all other
consultants’ contracts, reports and all governmental approvals obtained or applied for as of the
date of this Agreement relating to the Property or any improvements thereon, located on or
relating to the Property and/or any improvements thereon.
2.2 Fee Interest. Upon the Closing Date (as hereinafter defined), Developer
shall convey, assign and transfer its fee interest in the Property to the Nonprofit, free and clear of all
liens, encumbrances, easements, leases (recorded or unrecorded), bonds, assessments, and taxes,
except for (i) liens for non-delinquent property taxes and assessments, and (ii) the exceptions
approved in the Nonprofit’s Title Notice (as set forth in Section 3.1).
2.3 Consideration. Developer agrees to donate the Property to the Nonprofit
for no monetary consideration.
3. DUE DILIGENCE AND PRE-CLOSING REQUIREMENTS.
3.1 Condition of Title/Preliminary Title Report.
_________________________ Title Insurance Company (the “Title Agent”) shall deliver to the
Nonprofit a Preliminary Title Report for the Property (the “Preliminary Report”). The Nonprofit
shall have thirty (30) days from the date of receipt of the Preliminary Report to approve the
Preliminary Report in writing (the “Nonprofit’s Title Notice”), provided that all existing deeds of
trust, mechanic’s liens and other financial liens and encumbrances shall be paid off and removed
from title concurrently with or prior to the Closing. If there are any changes to the Preliminary
Report prior to Closing, the Nonprofit shall have fifteen (15) days after receipt of the revised
Preliminary Report to approve such changes. If Developer does not remedy any defect discovered
by the Preliminary Title Report, the Nonprofit shall have the right to terminate this Agreement or
continue with the escrow and consummate the transaction without Developer remedying the defect.
3.2 Due Diligence Contingency Period. The Nonprofit will have
___________ (__) days from the Effective Date (the “Due Diligence Contingency Period”) to
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3
complete physical inspections of the Property and due diligence related to the acquisition of the
Property. Within three (3) days after the Effective Date, Developer shall provide to the Nonprofit
copies of all plans, studies, records, reports, governmental notices and approvals, all written
disclosures required by applicable law, and other written materials related to the use, occupancy or
condition of the Property that Developer has in its possession, including without limitation
environmental, geotechnical, engineering and land surveys.
3.3 Inspection of Property. During the Due Diligence Contingency Period, the
Nonprofit, and its agents, contractors and employees, shall have the right to enter upon the Property
for the purpose of making inspections, surveying the Property, or to perform environmental testing,
at the Nonprofit’s sole risk, cost and expense. All of such entries upon the Property shall be at
reasonable times during normal business hours and after at least twenty-four (24) hours’ prior notice
to Developer, and Developer or Developer’s agents shall have the right to accompany the Nonprofit
and its agents during any activities performed by the Nonprofit on the Property. The Nonprofit shall
bear the costs of all such inspections or tests. At Developer’s request, the Nonprofit shall provide
Developer with a copy of the results of any environmental tests and inspections made by the
Nonprofit, at no cost to Developer. If any inspection or test disturbs the Property, the Nonprofit will
restore the Property to substantially the same condition as existed before the inspection or test. The
Nonprofit shall defend, indemnify and hold Developer harmless from and against any and all losses,
costs, damages, claims or liabilities, including but not limited to, mechanic’s and materialmen’s
liens, arising out of or in connection with the Nonprofit’s inspection of the Property as allowed
pursuant to this Section 3.3. The provisions of this Section 3.3 shall survive the Closing or any
earlier termination of this Agreement.
3.4 Survey. The Nonprofit may obtain a survey of the Property before the
Closing to assure that there are no defects, encroachments, overlaps, boundary line or acreage
disputes, or other such matters, that would be disclosed by a survey (“Survey Issues”). The cost
of the survey shall be paid solely by the Nonprofit. The Nonprofit shall notify Developer of any
Survey Issues which shall be deemed to be a defect in the title to the Property prior to the end of
the Due Diligence Contingency Period. Developer may agree to, but shall not be required to
agree to, remedy such defects, with all such defects cured prior to Closing. If Developer does not
agree to or cannot remedy any such defect, the Nonprofit shall have the right to terminate this
Agreement or continue the consummation of the transaction with Developer not remedying the
defect.
3.5 Satisfaction of Due Diligence Contingency. Except as otherwise provided
herein, if the Nonprofit is not, in good faith, satisfied with the condition of the Property after any
inspection thereof, the Nonprofit shall deliver to Developer a written request that Developer fix or
remedy any unsatisfactory conditions prior to the end of Due Diligence Contingency Period.
Developer may, but shall not be required to, remedy such conditions prior to Closing. If Developer
does not or cannot remedy any such condition, the Nonprofit shall have the right to terminate this
Agreement or continue the consummation of the transaction with Developer not remedying the
conditions. If the Nonprofit does not timely give a due diligence notice to Developer, this
Agreement shall continue in full force and effect and the Nonprofit shall be deemed to have waived
its right to terminate this Agreement pursuant to this Section 3.5.
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4. CLOSING AND REQUIRED PAYMENTS.
4.1 Escrow Account. The Parties shall open an escrow account (the “Escrow”)
with ______________________ Escrow (the “Escrow Holder”). Escrow Holder shall perform all
Escrow and title services in connection with this Agreement.
4.2 Deposit of Agreement. Within five (5) days after the Effective Date, the
Parties will deposit into Escrow a fully executed copy of this Agreement, or executed counterparts
thereto. The date such fully executed Agreement is received by Escrow Holder will be deemed the
“Opening of Escrow” and Escrow Holder will give written notice to the Parties of such occurrence.
4.3 Closing. The closing (“Closing”) will occur no later than
_________________________ (“Outside Closing Date”). Any extension of the Closing must be
agreed upon in writing by the Nonprofit and Developer.
4.4 Nonprofit’s Conditions to Closing. The Nonprofit’s acquisition of the
Property is subject to the satisfaction of all of the following conditions or the Nonprofit’s written
waiver (in the Nonprofit’s sole discretion) of such conditions on or before the Outside Closing Date:
(a) Expiration of the Due Diligence Contingency Period with no exercise
by the Nonprofit of its rights under this Agreement to terminate this Agreement.
(b) The Nonprofit has determined that the Property is useable for its
intended purpose, is free of toxic substances and contaminated soils, and is fully improved, with
infrastructure, adjacent utilities, grading, and all development-impact fees paid, excluding any
inclusionary zoning ordinance fees.
(c) The Nonprofit has determined that the Property is of sufficient size to
construct the number of Inclusionary Units that the Developer would otherwise be required to
construct, based on the size of lots in the East Ranch project.
(d) The Nonprofit has determined that the market value of the Property is
equal to or exceeds the difference between the value of a market-rate, 1200-square foot unit and the
price at which such a unit could be sold as an Affordable Unit (which amount shall be set forth in a
resolution adopted from time to time by the City Council) times the number of Inclusionary Units
required (36).
(e) Developer shall have delivered to Escrow a fully executed “Grant
Deed” (as defined in Section 4.7(a) below) and “Option Agreement”) (as defined in Section __
below), and all other documents to be submitted by Developer pursuant to this Agreement, all duly
executed by Developer.
(f) Developer shall have paid into the Escrow all amounts due from the
Developer under Section 4.7 hereof.
(g) The Title Company is irrevocably committed to issue a CLTA or
ALTA Extended Owner’s Title Policy to the Nonprofit, as requested by the Nonprofit, together with
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any endorsements requested by the Nonprofit, effective as of the Closing Date, insuring title to the
Nonprofit with a policy amount equal to the fair market value of the Property, subject only to the
Permitted Exceptions.
(h) Possession of the Property will be delivered to the Nonprofit
immediately upon the Closing, free and clear of all uses, leases and occupancies, and free of tenants
and occupants, except as otherwise set forth herein.
(i) There shall be no litigation or administrative proceeding pending with
respect to the Property as of the Closing, and there shall be no moratoria which would adversely
impact the use or value of the Property.
(j) Developer’s representations and warranties herein are true and correct
in all material respects as of the Closing Date.
4.5 Developer’s Conditions to Closing. The Closing and Developer’s obligation
to grant the Property to the Nonprofit are subject to the satisfaction of the following conditions or
Developer’s written waiver (in Developer’s sole discretion) of such conditions on or before the
Outside Closing Date:
(a) The Nonprofit has executed and submitted into Escrow all documents
pursuant to this Agreement, all duly executed by the Nonprofit.
(b) The Nonprofit’s representations and warranties set forth herein are true
and correct in all material respects as of the Closing Date.
(c) The Nonprofit has performed all obligations to be performed by the
Nonprofit pursuant to this Agreement on or before the Closing Date.
4.6 Conveyance of Title. Developer shall deliver fee simple title to the
Property to the Nonprofit at the Closing, subject only to items approved in the Nonprofit’s Title
Notice. The Property shall be conveyed by Developer to the Nonprofit in an “as is” condition, with
no warranty, express or implied, by Developer as to the physical condition of the Property including,
but not limited to, the soil, its geology, or the presence of known or unknown faults or hazardous
materials, Hazardous Substances on, in, under and adjacent to the Property, the air, soil, and
groundwater.
4.7 Deliveries at Closing.
(a) Deliveries by Developer. Developer shall deliver to Escrow for
recordation a grant deed, substantially in the form of Exhibit “B” attached hereto and incorporated
herein (the “Grant Deed”), and an “Option Agreement” between Nonprofit and City, substantially in
the form of Exhibit “C” hereto and incorporated herein. Developer shall deposit all costs of Closing
required to be paid by Developer pursuant to this Agreement, into Escrow at least one day prior to
Closing.
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(b) Closing. Upon Closing, Escrow shall: (i) record the Grant Deed; (ii)
record the Option Agreement; and (iii) pay any expenses payable with respect to the Closing.
(c) Closing Costs. Developer shall pay the full amount of all escrow fees,
recording fees, documentary transfer taxes, and title fees.
(d) Prorations. At the Closing, Developer shall be responsible for all
property taxes and assessments due through the Closing.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS.
5.1 Developer’s Representations, Warranties and Covenants. In addition to
the representations, warranties and covenants of Developer contained in other sections of this
Agreement, Developer hereby represents, warrants and covenants to the Nonprofit that the
statements below in this Section 5.1 are each true and correct as of the Closing Date; provided
however, if to Developer’s actual knowledge any such statement becomes untrue prior to Closing,
Developer will notify the Nonprofit in writing and the Nonprofit will have ten (10) days thereafter to
determine if the Nonprofit wishes to proceed with Closing.
(a) Authority. Developer has the full right, capacity, power and authority
to enter into and carry out the terms of this Agreement. This Agreement has been duly executed by
Developer, and upon delivery to and execution by the Nonprofit and City is a valid and binding
agreement of Developer. All the instruments, agreements and other documents executed by
Developer that are to be delivered to the Nonprofit at Closing are and at the time of Closing will be
duly authorized, executed and delivered by Developer, and will be the valid and binding agreements
and obligations of Developer enforceable in accordance with their respective terms.
(b) Encumbrances. Developer has not alienated, encumbered, transferred,
mortgaged, assigned, pledged, or otherwise conveyed its interest in the Property or any portion
thereof, nor entered into any agreement to do so, and there are no liens, encumbrances, mortgages,
covenants, conditions, reservations, restrictions, easements or other matters affecting the Property,
except as disclosed in the Preliminary Report or in this Agreement. Developer will not, directly or
indirectly, alienate, encumber, transfer, mortgage, assign, pledge, or otherwise convey its interest in
the Property or any portion thereof prior to the Closing, as long as this Agreement is in force.
(c) Other Agreements. There are no agreements affecting the Property
except those which have been disclosed by Developer to the Nonprofit. There are no agreements
which will be binding on the Nonprofit or the Property after the Closing which cannot be terminated
on thirty (30) days prior written notice.
(d) No Leases. Between the Effective Date and the earlier of the Closing
or the termination of this Agreement, Developer shall not enter into any new leases or extend the
term of any existing leases of any portion of the Property.
(e) Environmental. Other than those disclosures made pursuant to Section
6.1 hereof, Developer makes no other representations or warranties concerning the environmental
condition of the Property. The Nonprofit will satisfy itself concerning the environmental condition
of the Property, including but not limited to whether the Property or any portion thereof, including
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but not limited to the air, soil, or groundwater in, on, beneath, or adjacent to the Property is
contaminated with Hazardous Substances.
(f) Title. Except as disclosed herein, and in the Preliminary Report,
Developer has no actual knowledge of any unrecorded or undisclosed legal or equitable interest in
the Property owned or claimed by anyone other than Developer.
(g) Litigation and Administrative Proceedings. There is no pending,
or, to Developer’s actual knowledge, threatened litigation, administrative proceeding or other
legal or governmental action with respect to the Property.
(h) Disclosure. Developer has disclosed all material facts with respect
to the Property of which Developer has actual knowledge, and Developer further represents that
it has performed a reasonably diligent search for non-privileged documents relevant and material
to the condition of the Property and provided a copy of such documents to the Nonprofit.
(i) Non-Foreign Person. Developer is not a foreign person as defined
in Internal Revenue Code section 1445(f)(3).
(j) Bankruptcy and Insolvency. Developer is not bankrupt or
insolvent under any applicable federal or state standard, has not filed for protection or relief
under any applicable bankruptcy or creditor protection statute, and has not been threatened by
creditors with an involuntary application of any applicable bankruptcy or creditor protection
statute.
The truth and accuracy of each of the representations and warranties, and the performance of
all covenants of Developer contained in this Agreement are conditions precedent to the Nonprofit’s
obligation to proceed with the Closing hereunder. The foregoing representations and warranties shall
survive the expiration or termination of this Agreement and the Closing and shall not be deemed
merged into the deed upon the Closing.
5.2 Nonprofit’s Representations and Warranties. In addition to the
representations, warranties and covenants of the Nonprofit contained in other sections of this
Agreement, the Nonprofit hereby represents, warrants and covenants to Developer that the
statements below in this Section 5.2 are each true as of the Effective Date, and, if to the Nonprofit’s
actual knowledge any such statement becomes untrue prior to Closing, the Nonprofit shall so notify
Developer in writing and Developer shall have ten (10) days thereafter to determine if Developer
wishes to proceed with Closing.
(a) The Nonprofit is a California nonprofit corporation, in good standing
under the laws of the State of California. The Nonprofit has the full right, capacity, power and
authority to enter into and carry out the terms of this Agreement. This Agreement has been duly
executed by the Nonprofit, and upon delivery to and execution by Developer shall be a valid and
binding agreement of the Nonprofit.
(b) The Nonprofit is not bankrupt or insolvent under any applicable
federal or state standard, have not filed for protection or relief under any applicable bankruptcy or
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creditor protection statute, and have not been threatened by creditors with an involuntary application
of any applicable bankruptcy or creditor protection statute.
The truth and accuracy of each of the representations and warranties, and the performance of
all covenants of the Nonprofit contained in this Agreement are conditions precedent to Developer’s
obligation to proceed with the Closing hereunder.
6. ENVIRONMENTAL OBLIGATIONS.
6.1 Developer’s Responsibilities. California Health & Safety Code Section
25359.7 requires owners of real property who know, or have reasonable cause to believe, that any
release of Hazardous Substances are located on or beneath the real property to provide written notice
of same to the buyer of real property. Other applicable laws require Developer to provide certain
disclosures regarding natural hazards affecting the Property. Developer shall disclose to the
Nonprofit the actual knowledge Developer has with respect to the deposit of Hazardous Substances
on the Property, if any. Developer agrees to make all disclosures required by law within thirty (30)
days after the Effective Date. Developer’s responsibility and obligations of this Section 6.1 are
solely limited to Developer’s knowledge of, or Developer’s reasonable cause to believe, Hazardous
Substances that have been stored upon or released upon or under the Property.
6.2 As Is Sale. Except as otherwise stated in this Agreement and except for
Developer’s representations and warranties in Section 5.1 hereof (“Developer’s Warranties”), this
sale is made and will be made without representation, covenant, or warranty of any kind by
Developer. As a material part of the consideration for this Agreement, the Nonprofit agrees to
accept the Property on an “as is” and “where is” basis, with all faults, and without any representation
or warranty, all of which Developer hereby disclaim, except for Developer’s Warranties. Except for
Developer’s Warranties, no warranty or representation is made by Developer as to fitness for any
particular purpose, merchantability, design, quality, condition, operation or income, compliance with
drawings or specifications, absence of defects, absence of hazardous or toxic substances, hazardous
materials, hazardous wastes, absence of faults, flooding, or compliance with laws and regulations
including, without limitation, those relating to health, safety, and the environment. The Nonprofit
acknowledges that it has entered into this Agreement with the intention of making and relying upon
its own investigation of the physical, environmental, economic use, compliance, and legal condition
of the Property and that the Nonprofit is now relying, and will not later rely, upon any
representations and warranties made by Developer or anyone acting or claiming to act, by, through
or under or on Developer’s behalf concerning the Property, except for Developer’s Warranties. The
provisions of this Section 6.2 shall survive indefinitely any closing or termination of this Agreement.
6.3 Hazardous Substances. For purposes of this Agreement, “Hazardous
Substances” means all of the following:
(a) Any substance, product, waste or other material of any nature whatsoever
which is or becomes defined, listed or regulated as a “hazardous substance”, “hazardous
material”, “hazardous waste”, “toxic substance”, “solid waste” or similarly defined substance,
product, waste or other material pursuant to any Environmental Law (which Environmental Law
shall include any and all regulations in the Code of Federal Regulations or any other regulations
implemented under the authority of such Environmental Law), including all of the following and
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their state equivalents or implementing laws: (i) the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. §9601, et seq. (“CERCLA”); (ii) the Hazardous
Materials Transportation Act, 49 U.S.C. §1801, et. seq.; (iii) those substances listed on the
United States Department of Transportation Table (49 C.F.R. 172.01 and amendments thereto);
(iv) The Resource Conservation and Recovery Act, 42 U.S.C. §6901 et. seq. (“RCRA”); (v) the
Toxic Substances Control Act, 15 U.S.C. §2601 et. seq.; (vi) the Clean Water Act, 33 U.S.C.
§1251 et. seq.; (vii) the Clean Air Act, 42 U.S.C. §7401 et. seq.; and (viii) any other Federal,
state or local law, regulating, relating to, or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any
time hereafter in effect; or any substance, product, waste or other material of any nature
whatsoever which may give rise to liability under any of the above laws or under any statutory or
common law theory based on negligence, trespass, intentional tort, nuisance or strict liability or
under any reported decisions of a state or Federal court.
(b) any petroleum, any petroleum by-products, waste oil, crude oil or natural
gas;
(c) Any material, waste or substance that is or contains asbestos or
polychlorinated biphenyls, or is radioactive, flammable or explosive;
(d) Lead based paint and other forms of lead and heavy metals, mold, grease
tanks, waste storage areas, batteries, light bulbs, refrigerators, freezers, appliances, heating and
cooling systems, thermostats, electronic devices, electrical switches, gauges, thermometers,
aerosol cans, cleaning products, formaldehyde, polyurethane, PCE, PFAs, pressure treated wood
containing arsenic, and building materials containing PCBs or volatile organic compounds, and
(e) Any other substance, product, waste or material defined or to be treated or
handled as a Hazardous Substance pursuant to the provisions of this Agreement.
6.4 Environmental Law(s). For purposes of this Agreement, “Environmental Law”
means any federal, state, or local laws, ordinances, rules, regulations, requirements, orders,
formal guidelines, or permit conditions, in existence as of the Effective Date of this Agreement
or as later enacted, promulgated, issued, modified or adopted, regulating or relating to Hazardous
Substances, and all applicable judicial, administrative and regulatory judgments and orders and
common law, including those relating to industrial hygiene, public safety, human health, or
protection of the environment, or the reporting, licensing, permitting, use, presence, transfer,
treatment, analysis, generation, manufacture, storage, discharge, release, disposal, transportation,
investigation or remediation of Hazardous Substances. Environmental Laws shall include,
without limitation, all of the laws listed under the definition of Hazardous Substances.
7. BROKERS. The Nonprofit and Developer each represent that no real estate
broker has been retained by it in the donation of the Property or the negotiation of this
Agreement. Each Party shall indemnify, hold harmless and defend the other Party from any and
all claims, actions and liability for any breach of the preceding sentence, and any commission,
finder’s fee, or similar charges arising out of the indemnifying Party’s conduct.
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8. MISCELLANEOUS.
8.1 Interpretation. This Agreement has been negotiated at arm’s length, and
each Party has had an opportunity to be represented by independent legal counsel in this transaction.
Accordingly, each Party hereby waives any benefit under any rule of law (including Section 1654 of
the California Civil Code) or legal decision that would require interpretation of any ambiguities in
this Agreement against the drafting Party.
8.2 Survival. All indemnities, covenants, representations and warranties
contained in this Agreement shall survive the Closing.
8.3 Assignment. Except as provided below, neither Developer nor the
Nonprofit may assign its rights or delegate its duties under this Agreement without the express
written consent of the other, which consent may be withheld for any reason. No permitted
assignment of any of the rights or obligations under this Agreement shall result in a novation or
in any other way release the Developer from their obligations under this Agreement.
a. The Nonprofit may transfer its interests hereunder, without the
approval of City or Developer, to a limited partnership in which the managing general partner is
an entity under the direct control of or under common control with the Nonprofit.
b. The Nonprofit may transfer its interests hereunder to City at any
time, without the approval of Developer. If (i) the Nonprofit elects not to acquire the Property,
or (ii) the Nonprofit has not closed escrow on the acquisition of the Property on or before the
Outside Closing Date, then the Nonprofit’s interests hereunder shall automatically be assigned to
City, the Due Diligence Contingency Period shall be extended to [sixty (60)] days after the date
of such assignment, and the Outside Closing Date shall be extended to [thirty (30)] days after the
end of the revised Due Diligence Contingency Period. City shall not be liable for any
obligations of the Nonprofit which arose prior to the date of assignment.
8.4 Successors. Except as provided to the contrary in this Agreement, this
Agreement shall be binding on and inure to the benefit of the Parties and their successors and
assigns.
8.5 Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California. Venue for any dispute arising hereunder shall be
in the Superior Court of Alameda County.
8.6 Integrated Agreement; Modifications. This Agreement contains all the
agreements of the Parties concerning the subject hereof and cannot be amended or modified except
by a written instrument executed and delivered by the Parties. There are no representations,
agreements, arrangements or understandings, either oral or written, between or among the Parties
hereto relating to the subject matter of this Agreement that are not fully expressed herein. In
addition there are no representations, agreements, arrangements or understandings, either oral or
written, between or among the Parties upon which any Party is relying upon in entering this
Agreement that are not fully expressed herein. Any modifications to this Agreement must be in
writing and signed by Developer, City and the Nonprofit.
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8.7 Severability. If any term or provision of this Agreement is determined to be
illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or
invalid provisions or part thereof shall be stricken from this Agreement, and the remainder of this
Agreement shall remain in full force and effect unless the invalidated provision materially alters the
consideration being exchanged between Developer and the Nonprofit. However, if any provision or
part thereof of this Agreement is stricken in accordance with the provisions of this Section, but the
stricken provision can be replaced with a legal, enforceable and valid provision in keeping with the
intent of the Parties as expressed herein and which fairly restores the consideration lost as a result of
the stricken provision or stricken part thereof, then this Agreement shall remain in full force and
effect.
8.8 Notices. Any delivery of this Agreement, notice, modification of this
Agreement, collateral or additional agreement, demand, disclosure, request, consent, approval,
waiver, declaration or other communication that either Party desires or is required to give to the
other Party or any other person shall be in writing. Any such communication may be served
personally, or by nationally recognized overnight delivery service (i.e., FedEx) which provides a
receipt of delivery, or sent by prepaid, first class mail, return receipt requested to the Party’s address
as set forth below:
If to Nonprofit: Eden Housing
22645 Grand Street
Hayward, California 94541-5031
Attention:
If to Developer: TH East Ranch Dublin, LLC
3001 Bishop Drive, Suite 100
San Ramon, CA 94583
Attention: Tony Bosowski, Division President
And a copy to: TH East Ranch Dublin, LLC
3001 Bishop Drive, Suite 100
San Ramon, CA 94583
Attention: Legal Department
And a copy to: Jackson Tidus
2030 Main Street, 12th Floor
Irvine, CA 92614
Attention: Sonia Lister, Esq.
If to City: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
Copy to City Attorney
Any such communication shall be deemed effective upon personal delivery or on the date of
first refusal to accept delivery as reflected on the receipt of delivery or return receipt, as applicable.
811
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Any Party may change its address by notice to the other Party. Each Party shall make a good faith
effort to ensure that it will accept or receive notices that are given in accordance with this section
and that any person to be given notice actually receives such notice.
8.9 Time. Time is of the essence to the performance of each and every
obligation under this Agreement.
8.10 Reasonable Consent and Approval. Except as otherwise provided in this
Agreement, whenever a Party is required or permitted to give its consent or approval under this
Agreement, such consent or approval shall not be unreasonably withheld or delayed. If a Party is
required or permitted to give its consent or approval in its sole and absolute discretion or if such
consent or approval may be unreasonably withheld, such consent or approval may be unreasonably
withheld but shall not be unreasonably delayed.
8.11 Further Assurances. The Parties shall at their own cost and expense
execute and deliver such further documents and instruments and shall take such other actions as may
be reasonably required or appropriate to carry out the intent and purposes of this Agreement.
8.12 Waivers. Any waiver by any Party shall be in writing and shall not be
construed as a continuing waiver. No waiver will be implied from any delay or failure to take action
on account of any default by any Party. Consent by any Party to any act or omission by another
Party shall not be construed to be a consent to any other subsequent act or omission or to waive the
requirement for consent to be obtained in any future or other instance.
8.13 Signatures/Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Any one of such completely executed counterparts shall be
sufficient proof of this Agreement.
8.14 Date and Delivery of Agreement. Notwithstanding anything to the
contrary contained in this Agreement, the Parties intend that this Agreement shall be deemed
effective, and delivered for all purposes under this Agreement, and for the calculation of any
statutory time periods based on the date an agreement between Parties is effective, executed, or
delivered, as of the Effective Date.
8.15 Representation on Authority of Parties. Each person signing this
Agreement represents and warrants that he or she is duly authorized and has legal capacity to
execute and deliver this Agreement. Each Party represents and warrants to the other that the
execution and delivery of the Agreement and the performance of such Party’s obligations hereunder
have been duly authorized and that the Agreement is a valid and legal agreement binding on such
Party and enforceable in accordance with its terms.
8.16 No Return of Property. Notwithstanding any other provision of this
Agreement or any other agreement between any of the Parties hereto, once the Property is
conveyed to and accepted by the Nonprofit, the Nonprofit shall have no right or obligation to
return the Property to Developer under any circumstances.
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8.17 Fees and Expenses. Except as otherwise provided herein, all expenses
incurred as part of the transaction, including legal, professional, due diligence, advisory support,
negotiation, etc., shall be borne by the party which incurred the fee or expense.
8.18 No Continued Marketing. From and after the execution of this
Agreement, Developer shall not market or solicit offers for the Property from any third parties
(including “backup” offers).
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IN WITNESS WHEREOF, this Agreement is executed by the Parties as of the Effective
Date.
Nonprofit:
By:___________________________________
By:___________________________________
Developer:
By:___________________________________
City:
By:___________________________________
814
Exhibit A
EXHIBIT A
LEGAL DESCRIPTION
That real property located in the City of Dublin, County of Alameda, State of California,
described as follows:
815
Exhibit B
EXHIBIT B
Recording Requested by
and When Recorded, Return to:
APN 163-361-11
Exempt from Documentary Transfer Tax
Per Rev. & Tax. Code § 11911(a)
Consideration less than $100
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged, TH East Ranch
Dublin, LLC, a California limited liability company (“Grantor”), hereby grants to
________________________________________ (“Grantee”), all that certain real property,
together with any and all improvements and fixtures situated thereon and appurtenances thereto
(collectively, the “Property”), located in the City of Dublin, County of Alameda, State of
California and more particularly described in Attachment No. 1 hereto and incorporated in this
Grant Deed by this reference.
1. Grantee agrees that the Property shall be bound by the following Restrictions and
acknowledges that the failure to comply with any of the foregoing shall constitute a violation of
the Restrictions:
(a) ____________________.
(b) ____________________.
(c) ____________________.
2. This Deed and the Restrictions shall run with the land and shall be binding upon
Grantee and inure to the benefit of Grantor. References herein to “Grantor” shall include all
successors, assigns and transferees of Grantor’s rights and remedies hereunder and at law or in
equity for a breach of the Restrictions, and references herein to “Grantee” shall include all
successors, assigns and transferees of Grantee’s right, title and interest in the Property and this
Deed (including, without limitation, the Restrictions). This Deed and the Restrictions shall be
enforceable by the rights and remedies set forth in Paragraph 2 hereof.
816
Exhibit B
3. The City of Dublin, a California municipal corporation (the “City”), is an
intended third party beneficiary of the Restrictions, with rights to enforce the Restrictions.
4. Neither this Deed nor the Restrictions may be rescinded, modified or amended, in
whole or in part, without the written consent of Grantor and City.
5. Whenever in this Deed a notice is to be given to Grantor or Grantee, it shall be in
writing and delivered personally, by certified mail, or by reputable courier service which
provides written evidence of delivery, addressed as follows: (i) as to Grantee, to the then current
fee owner of the Property at the address to which real property tax statements for the Property
are then currently to be mailed by the applicable governmental taxing authority, and (ii) as to
Grantor, to___________________________________________, or (B) to such other address for
Grantor that is identified as Grantor’s notice address in any instrument delivered to the then
Grantee.
.
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of
________________, 202__.
GRANTOR:
TH East Ranch Dublin, LLC,
a California limited liability company
By:___________________________________
GRANTEE:
By:__________________________________
By:__________________________________
CITY:
By:___________________________________
By:___________________________________
817
Exhibit B
Attachment No. 1 to Grant Deed
LEGAL DESCRIPTION
That real property located in the County of Alameda, State of California, described as follows:
818
Exhibit B
A notary public or other officer completing
this certificate verifies only the identity of the
individual who signed the document to which
this certificate is attached, and not the
truthfulness, accuracy, or validity of that
document.
State of California )
) ss.
County of _____________ )
On_____________________, 20____ before me, _____________________, a Notary Public, in and
for said State and County, personally appeared _______________________, who proved to me on
the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
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.
_______________________________
NOTARY PUBLIC
819
Exhibit C
EXHIBIT “C”
OPTION AGREEMENT
[To Be Attached]
5428396.2
820
-1-
EXHIBIT F
ADU Regulatory Agreement
Attached
5405636.4
821
Second Unit Reg Agmt / Name / Date 1 Rev 12/2017
requested by and when
recorded mail to:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Clerk
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s Use
City Clerk Department\Agreements/Contracts\0600-25
Development: East Ranch
Owner:
APN:
SECONDARY UNIT REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
Owner: Name
Property Address: Address, Lot #
Dublin, CA 94568
Name of Development: East Ranch
This Secondary Unit Regulatory Agreement and Declaration of Restrictive
Covenants (this "Agreement”) is entered into effective as of Date (“Effective Date”) by
and between the City of Dublin, a public body, corporate and politic (“City”) and Name
(the “Owner”). City and Owner are hereinafter collectively referred to as the “Parties.”
Recitals
A. Owner is the owner of certain real property that contains a secondary
dwelling unit, which is located in the City of Dublin, County of Alameda, State of California
and more particularly described in Exhibit A attached hereto and incorporated herein by
reference (the “Property”). The Property is located within a residential development
project area (the “Project”) that was subject to the City’s Inclusionary Zoning Regulations
(Chapter 8.68 of the Dublin Municipal Code), which requires that developments consisting
of 20 or more residential units must include a specified percentage of units that are subject
to affordability restrictions set forth in a binding agreement recorded against the property.
B. The developer of the Project chose to satisfy its obligations through among
other things the construction of secondary units on some of the residential lots in the
Project, including on the Property, and requiring the purchasers to enter into regulatory
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agreements restricting the rents charges for the secondary units to affordable rents, in
accordance with the Inclusionary Zoning Regulations.
C. The Parties have agreed to enter into and record this Agreement in order to
satisfy the requirements described in the foregoing Recitals. The purpose of this
Agreement is to regulate and restrict the occupancy and rents of the Property’s Restricted
Unit (defined below) for the benefit of the occupants. The covenants in this Agreement
are intended to run with the land and be binding on Owner and its successors and assigns
for the full term of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the Parties hereby agree as follows:
1. Definitions. The following terms have the meanings set forth in this Section
wherever used in this Agreement or the attached exhibits.
“Applicable Income Level” means the annual gross income level specified below:
Low-income: 50% to 80% of Area Median Income.
"Area Median Income" or "AMI" means the area median income for Alameda
County, California, adjusted for household size, published periodically by the California
Department of Housing and Community Development (“HCD”) in Section 6932 of Title 25
of the California Code of Regulations (“Regulations”) or successor provision published.
"Eligible Household" means a household whose gross income does not exceed
the Applicable Income Level and that is otherwise eligible to rent a Restricted Unit.
"Qualifying Rent" means a monthly rent which does not exceed one-twelfth of
thirty percent (30%) of the Applicable Income Level adjusted for household size, less a
utility allowance as specified by the Housing Authority of Alameda County.
"Restricted Unit" means the secondary dwelling unit on the Property that is
depicted in Exhibit B and that is reserved for occupancy at a Qualifying Rent in
accordance with and as set forth in Section 2.
2. Use and Affordability Restrictions. Owner represents and warrants that it has not
entered into any agreement that would restrict or compromise its ability to comply with
the occupancy and affordability restrictions set forth in this Agreement, and Owner
covenants that it shall not enter into any agreement that is inconsistent with such
restrictions without the express written consent of City.
2.1 Affordability Requirements. The Restricted Unit, if it is rented, shall be
rented at not more than Qualifying Rent and occupied by Eligible Households. Owner
shall ensure that language is contained in all leases and contracts with tenants executed
by Owner that prohibits subleasing of the Restricted Unit.
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Second Unit Reg Agmt / Name / Date 3 Rev 12/2017
2.2 Rents for Restricted Units. Rent charged to, and paid by, a tenant for
Restricted Units shall be not more than Qualifying Rent. Notwithstanding the foregoing,
no tenant qualifying for a Restricted Unit shall be denied continued occupancy of the
Restricted Unit because, after admission, such tenant’s adjusted income increases to
exceed the qualifying limit for such Restricted Unit.
2.3 Non-Discrimination; Compliance with Fair Housing Laws. Owner shall not
discriminate against persons or groups of persons on account of race, color, religion,
creed, sex, sexual orientation, marital status, familial status, ancestry or national origin in
the lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor
shall Owner or any person claiming under or through Owner establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in the Property. Owner shall each ensure that language prohibiting such
discrimination shall be included in all deeds, leases and contracts executed by Owner or
its successors and assigns with respect to the Property. Owner shall comply with state
and federal fair housing laws in the marketing and rental of the units in the Property.
3. Reporting Requirements.
3.1 Tenant Verification. Owner or its authorized agent shall obtain from each
household prior to initial occupancy of each Restricted Unit, and on every anniversary
thereafter, written documentation verifying each tenant’s eligibility containing all of the
following, including additional documentation as City may reasonably require (collectively
hereinafter “Written Verification”):
(a) Number of people in the household; and
(b) Total household income.
Owner or its authorized agent shall retain Written Verification for not less than three (3)
years, and upon City’s request, shall make the Written Verification available for inspection
by City and shall provide copies of the Written Verification to City. Owner or its authorized
agent may require each Eligible Household to certify the Written Verification.
3.2 Annual Report; Inspections. Owner shall submit an annual report (“Annual
Report”) to the City in conformity with the requirements of Section 8.68.050.B of the
Inclusionary Zoning Regulations, together with a certification that the Property is in
compliance with the requirements of this Agreement. The Annual Report shall, at a
minimum, include the following information: (i) identification of the Restricted Unit by
address; (ii) the monthly rents charged and proposed to be charged; (v) the number of
people residing in the unit; and (vi) the total household income of residents. Depicted in
Exhibit C. Upon City’s request, Owner shall include with the Annual Report, a copy of the
Written Verification Owner obtained pursuant to Section 3.1 above, and such additional
information as City may reasonably request from time to time in order to show compliance
with this Agreement. Owner shall permit representatives of City to enter and inspect the
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Second Unit Reg Agmt / Name / Date 4 Rev 12/2017
Property during reasonable business hours in order to monitor compliance with this
Agreement upon 24 hours advance notice of such visit to Owner.
4. Term of Agreement.
4.1 Term of Restrictions. This Agreement shall remain in effect for 55 years
from the original owner’s date of signing, hereby understood by the Parties to be DATE.
4.2 Effectiveness Succeeds Conveyance of Property. This Agreement shall
remain effective and fully binding for the full term hereof regardless of any sale,
assignment, transfer, or conveyance of the Property, unless this Agreement is terminated
earlier by City in a recorded writing.
4.3 Reconveyance. Upon the termination of this Agreement, the Parties agree
to execute and record appropriate instruments to release and discharge the terms of this
Agreement; provided, however, the execution and recordation of such instruments shall
not be necessary or a prerequisite to the termination of this Agreement in accordance
with its terms.
5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby
subjects its interest in the Property to the covenants and restrictions set forth in this
Agreement. The City and Owner hereby declare their express intent that the covenants
and restrictions set forth herein shall be deemed covenants running with the land and
shall be binding upon and inure to the benefit of the heirs, administrators, executors,
successors in interest, transferees, and assigns of Owner and City, regardless of any
sale, assignment, conveyance or transfer of the Property or any part thereof or interest
therein. Each reference in this Agreement to a specifically named party shall be deemed
to mean a reference to the successor of each such Party. Any successor-in-interest to
Owner, including without limitation any purchaser, transferee or lessee of the Property
(other than the tenants of the individual dwelling units within the Property) shall be subject
to all of the duties and obligations imposed hereby for the full term of this Agreement.
Each and every contract, deed, ground lease or other instrument affecting or conveying
the Property or any part thereof, shall conclusively be held to have been executed,
delivered and accepted subject to the covenants, restrictions, duties and obligations set
forth herein, regardless of whether such covenants, restrictions, duties and obligations
are set forth in such contract, deed, ground lease or other instrument. If any such
contract, deed, ground lease or other instrument has been executed prior to the date
hereof, Owner hereby covenants to obtain and deliver to City an instrument in recordable
form signed by the parties to such contract, deed, ground lease or other instrument
pursuant to which such parties acknowledge and accept this Agreement and agree to be
bound hereby.
Owner agrees for itself and for its successors that in the event that a court of
competent jurisdiction determines that the covenants herein do not run with the land, such
covenants shall be enforced as equitable servitudes against the Property in favor of City.
6. Property Management; Repair and Maintenance; Marketing.
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Second Unit Reg Agmt / Name / Date 5 Rev 12/2017
6.1 Management Responsibilities. Owner shall be responsible for all
management functions with respect to the Property, including without limitation the
selection of tenants, certification and recertification of household income and eligibility,
evictions, collection of rents and deposits, maintenance, landscaping, routine and
extraordinary repairs, replacement of capital items, and security. Except as City may
otherwise agree in writing, City shall have no responsibility for management or
maintenance of the Property. The contracting of management services to a management
entity shall not relieve Owner of its primary responsibility for proper performance of
management duties.
6.2 Intentionally Omitted.
6.3 Repair, Maintenance and Security. Throughout the term of this Agreement,
Owner shall at its own expense, maintain the Property in good physical condition, in good
repair, and in decent, safe, sanitary, habitable and tenantable living conditions in
conformity with all applicable state, federal, and local laws, ordinances, codes, and
regulations. Without limiting the foregoing, Owner agrees to maintain the Property
(including without limitation, the residential units, common areas, landscaping, driveways
and walkways) in a condition free of all waste, nuisance, debris, unmaintained
landscaping, graffiti, disrepair, abandoned vehicles/appliances, and illegal activity, and
shall take all reasonable steps to prevent the same from occurring on the Property.
Owner shall prevent and/or rectify any physical deterioration of the Property and shall
make all repairs, renewals and replacements necessary to keep the Property and the
improvements located thereon in good condition and repair.
6.4 Intentionally omitted.
6.5 Intentionally omitted.
6.6 Intentionally omitted.
6.7 Intentionally omitted.
6.8 Property Damage or Destruction. If any part of the Property is damaged or
destroyed, Owner shall repair or restore the same as soon as practicable, consistent with
the occupancy and rent restriction requirements set forth in this Agreement.
7. Recordation; No Subordination. This Agreement shall be recorded in the Official
Records of Alameda County. Concurrently with the execution and recordation of this
Agreement, Owner and City shall further execute and record a Performance Deed of
Trust, Assignment of Rents, Fixture Filing and Security Agreement, in the form provided
by City (the “Performance Deed of Trust”). Owner hereby represents, warrants and
covenants that with the exception of easements and restrictions of record, absent the
written consent of City, this Agreement and the Performance Deed of Trust shall not be
subordinated in priority to any lien (other than those pertaining to taxes or assessments),
encumbrance, or other interest in the Property. If at the time this Agreement and the
Performance Deed of Trust are recorded, any interest, lien, or encumbrance has been
recorded against the Property in position superior to this Agreement and the Performance
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Second Unit Reg Agmt / Name / Date 6 Rev 12/2017
Deed of Trust, upon the request of City, Owner hereby covenants and agrees to promptly
undertake all action necessary to clear such matter from title or to subordinate such
interest to this Agreement consistent with the intent of and in accordance with this Section,
and to provide such evidence thereof as City may reasonably request. Subordination of
this Agreement and the Performance Deed of Trust shall require a fee to be paid to the
City at the close of escrow. Fee amounts may adjust annually.
8. Transfer and Encumbrance.
8.1 Restrictions on Transfer. During the term of this Agreement, except as
permitted pursuant to this Agreement, Owner shall not make or permit the occurrence of
any conveyance, sale or lease (except as to individual dwelling units) of the Property
without the prior written consent of the City; provided however City shall not withhold its
consent to the sale, transfer or other disposition of the Property, in whole or in part,
provided that (i) the transferee expressly assumes all obligations of Owner imposed by
this Agreement; (ii) the transferee executes all documents reasonably requested by the
City with respect to the assumption of the Owner’s obligations under this Agreement; and
(iii) the Owner has paid the City an Affordable Home Ownership Fee to cover the City’s
costs associated with the transaction. The amount of the Affordable Home Ownership
Fee amount shall be as established from time to time by the City Council.
8.2 Encumbrances. Owner agrees to use best efforts to ensure that any deed
of trust secured by the Property shall contain each of the following provisions: (i) the
holder of such deed of trust shall use its best efforts to provide to City a copy of any notice
of default issued to Owner concurrently with provision of such notice to Owner (provided
however, the failure to do so shall not impair such holder’s rights and remedies); and (ii)
City shall have the reasonable right, but not the obligation, to cure any default by Owner
within the same period of time provided to Owner for such cure, extended by an additional
thirty (30) days.
8.3 Mortgagee Protection. No violation of any provision contained herein shall
defeat or render invalid the lien of any mortgage or deed of trust made in good faith and
for value upon all or any portion of the Property, and the purchaser at any trustee’s sale
or foreclosure sale shall not be liable for any violation of any provision hereof occurring
prior to the acquisition of title by such purchaser. Such purchaser shall be bound by and
subject to this Agreement from and after such trustee’s sale or foreclosure sale. Promptly
upon determining that a violation of this Agreement has occurred, City shall give written
notice to the holders of record of any mortgages or deeds of trust encumbering the
Property that such violation has occurred.
9. Default and Remedies.
9.1 Events of Default. Owner’s failure to cure any default in performance of
Owner’s obligations under this Agreement within thirty (30) days following City’s delivery
of a notice of default shall constitute an Event of Default hereunder and shall entitle the
City to proceed with any of the remedies described below. Notwithstanding the foregoing,
if the default is such that it is not reasonably capable of being cured within thirty (30) days,
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Second Unit Reg Agmt / Name / Date 7 Rev 12/2017
an Event of Default shall not arise hereunder if Owner commences to cure the default
within 30 days and thereafter prosecutes the curing of such default to completion with
due diligence and in good faith, but in no event later than ninety (90) days after receipt of
City’s notice of default or such longer period as City may agree to in writing.
(a) Bring an action for equitable relief seeking the specific performance
of the terms and conditions of this Agreement, and/or enjoining, abating, or preventing
any violation of such terms and conditions, and/or seeking declaratory relief;
(b) For violations of obligations with respect to rents for Restricted Units,
impose as liquidated damages a charge in an amount equal to the actual amount
collected in excess of the Qualifying Rent;
(c) Pursue any other remedy allowed at law or in equity.
9.2 Remedies Cumulative. Each of the remedies provided herein is cumulative
and not exclusive. The City may exercise from time to time any rights and remedies
available to it under applicable law or in equity, in addition to, and not in lieu of, any rights
and remedies expressly provided in this Agreement.
10. Indemnification. Owner shall defend (with counsel approved by City), indemnify
and hold the City and its officials, officers, directors, employees, and agents (collectively,
the "Indemnified Parties") harmless from and against any and all losses, damages,
liabilities, claims, demands, judgments, actions, court costs, and legal or other expenses
(including reasonable attorneys' fees) arising from or in connection with or in any way
related to: (i) Owner’s performance or failure to perform any obligation required by this
Agreement; or (ii) any act or omission by Owner, or any of Owner’s contractors,
subcontractors, agents, employees, licensees or suppliers related to the Property, except
to the extent arising from the gross negligence or willful misconduct of such Indemnified
Party. The provisions of this Section shall survive the expiration or earlier termination of
this Agreement.
11. Miscellaneous.
11.1 Amendments. This Agreement may be amended or modified only by a
written instrument signed by both Parties.
11.2 No Waiver. Any waiver by City of any term or provision of this Agreement
must be in writing. No waiver shall be implied from any delay or failure by City to take
action on any breach or default hereunder or to pursue any remedy allowed under this
Agreement or applicable law. No failure or delay by City at any time to require strict
performance by Owner of any provision of this Agreement or to exercise any election
contained herein or any right, power or remedy hereunder shall be construed as a waiver
of any other provision or any succeeding breach of the same or any other provision hereof
or a relinquishment for the future of such election.
11.3 Notices. Except as otherwise specified herein, all notices to be sent
pursuant to this Agreement shall be made in writing, and sent to the Parties at their
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Second Unit Reg Agmt / Name / Date 8 Rev 12/2017
respective addresses specified below or to such other address as a Party may designate
by written notice delivered to the other parties in accordance with this Section. All such
notices shall be sent by:
(a) personal delivery, in which case notice is effective upon delivery;
(b) certified or registered mail, return receipt requested, in which case
notice shall be deemed delivered upon receipt if delivery is confirmed by a return receipt;
(c) nationally recognized overnight courier, with charges prepaid or
charged to the sender’s account, in which case notice is effective on delivery if delivery
is confirmed by the delivery service;
(d) facsimile transmission, in which case notice shall be deemed
delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly
delivered by first-class or certified mail or by overnight delivery, or (b) a transmission
report is generated reflecting the accurate transmission thereof. Any notice given by
facsimile shall be considered to have been received on the next business day if it is
received after 5:00 p.m. recipient’s time or on a nonbusiness day.
City:
City of Dublin
Attn: City Clerk
100 Civic Plaza
Dublin, CA 94568
HousingInfo@dublin.ca.gov
Owner:
Buyers
Address
Dublin, CA 94568
11.4 Further Assurances. The Parties shall execute, acknowledge and deliver
to the other such other documents and instruments, and take such other actions, as either
shall reasonably request as may be necessary to carry out the intent of this Agreement.
11.5 Parties Not Co-Venturers. Nothing in this Agreement is intended to or shall
establish the Parties as partners, co-venturers, or principal and agent with one another.
11.6 Action by the City. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, consent or request by the City is required or
permitted under this Agreement, such action shall be in writing, and such action may be
given, made or taken by the City Manager or by any person who shall have been
designated by the City Manager, without further approval by the City Council.
11.7 Non-Liability of City and City Officials, Employees and Agents. No member,
official, employee or agent of the City shall be personally liable to Owner or any successor
in interest, in the event of any default or breach by the City, or for any amount of money
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Second Unit Reg Agmt / Name / Date 9 Rev 12/2017
which may become due to Owner or its successor or for any obligation of City under this
Agreement.
11.8 Headings; Construction. The headings of the sections and paragraphs of
this Agreement are for convenience only and shall not be used to interpret this
Agreement. The language of this Agreement shall be construed as a whole according to
its fair meaning and not strictly for or against any Party.
11.9 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
11.10 Governing Law. This Agreement shall be construed in accordance with the
laws of the State of California without regard to principles of conflicts of law.
11.11 Attorneys' Fees and Costs. If any legal or administrative action is brought
to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled
to recover all reasonable attorneys' fees and costs incurred in such action.
11.12 Severability. If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability
of the remaining provisions shall not be affected or impaired thereby.
11.13 Entire Agreement; Exhibits. This Agreement contains the entire agreement
of Parties with respect to the subject matter hereof, and supersedes all prior oral or written
agreements between the Parties with respect thereto. The exhibits attached hereto are
incorporated herein by this reference.
11.14 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original and all of which together shall constitute one agreement.
SIGNATURES ON FOLLOWING PAGE.
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Second Unit Reg Agmt / Name / Date 10 Rev 12/2017
IN WITNESS WHEREOF, the Parties have executed this Agreement effective as
of the date first written above.
OWNER
______________________________
Buyer
______________________________
Buyer
CITY OF DUBLIN
_______________________________
Linda Smith, City Manager
ATTEST:
___________________________________
City Clerk
SIGNATURES MUST BE NOTARIZED.
831
Notary Acknowledgement
[Insert Here]
832
Exhibit A
LEGAL DESCRIPTION
833
Exhibit B
MAP
834
EXHIBIT C
ANNUAL SURVEY SAMPLE
835
5431268.2
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STAFF REPORT
CITY COUNCIL
Page 1 of 7
Agenda Item 8.3
DATE:April 18, 2023
TO:Honorable Mayor and City Councilmembers
FROM:Linda Smith, City Manager
SUBJECT:East Ranch Inclusionary Housing and Community Facilities District ProposalsPrepared by:Amy Million, Principal Planner and Kan Xu, Senior CivilEngineer
EXECUTIVE SUMMARY:The Applicant, TH East Ranch Dublin, LLC (Trumark Homes), submitted a request for the City Council’s consideration of an alternative method of complying with the Inclusionary Zoning Regulations and the formation of a Facilities Community Facilities District (CFD) to finance the construction of public improvements within the East Ranch development project. The City Council will receive a presentation from the Applicant and provide feedback regarding the affordable housing proposal and formation of a Facilities CFD for improvements. No formal action will be taken, nor will approvals be granted, for the project at this meeting.
STAFF RECOMMENDATION:Receive the presentation and provide feedback on the Applicant’s proposal to satisfy the requirements of the Inclusionary Zoning Regulations and formation of a Community Facilities District to fund the construction of public facilities.
FINANCIAL IMPACT:All costs associated with preparing this report are borne by the Applicant. The Applicant’s inclusionary housing proposal includes the payment of in-lieu fees for 25 units to satisfy 35% of the affordable requirement. Based on the current in-lieu fee of $228,994.42/unit this payment would be $5,724,860.50. In addition, as a part of the implementation of the East Ranch development project, a Facilities Community Facilities District (CFD) is proposed for the purpose of financing the acquisition and construction of public improvements within the development, including two neighborhood parks.
Attachment 3
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DESCRIPTION:BackgroundThe 165.5-acre East Ranch development project site is an undeveloped parcel located within the Fallon Village area of the Eastern Dublin Specific Plan (EDSP). The site is located north of Interstate 580, east of Fallon Road and the Jordan Ranch development, south of the Positano development, and adjacent to the City’s eastern boundary,as shown in Figure 1 below. The projectsite generally increases in elevation from south to north with knolls and hilly terrain in the northeastern portion of the site. Figure 1.Vicinity Map
On December 7, 2021, the City Council introduced a Planned Development Ordinance,approvedVesting Tentative Tract Map No. 8563,and approved a Heritage Tree Removal Permit (Resolution No. 140-21). On December 21, 2021, the City Council approved a Planned Development Zoning Stage 2 Development Plan (Ordinance No. 11-21). On December 23, 2021, pursuant to Elections Code Section 9238, subd. (b)(2)(B), a proposed summary of a referendum against Planned Development Zoning Ordinance No. 11-21 was submitted. To qualify, the referendum petition needed to contain signatures of at least 10% of the registered Dublin voters or a minimum of 3,439 signatures. The referendum petition was determined to be sufficient for filing and was delivered to the Alameda County Registrar of Voters on January 27, 2022 for signature examination. The Registrar of Voters determined that the petition contained the minimum number of valid signatures necessary to qualify the referendum for consideration by the City Council.
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On March 1, 2022, the City Council accepted the City Clerk’s Certificate of Petition certifying the sufficiency of the referendum petition. At the request of TH East Ranch Dublin, LLC, the Applicant, the City Council also repealed Ordinance No. 11-21 (Ordinance No. 02-22). The City Council took this action instead of asking the voters to consider Ordinance No. 11-21.The Applicant has correctly pointed out that the Housing Accountability Act (HAA) (Government Code Section 65589.5) expressly precludes the City from requiring a rezone when a project is consistent with the General Plan. This rule applies even when the existing zoning is inconsistent with the General Plan, as is the case here. The Vesting Tentative Tract Map No. 8563 was not subject to the referendum and, therefore, remains in effect. On May 3, 2022, the City Council approved modifications to Condition of Approval Nos. 6 and 7 of the Vesting Tentative Map (Resolution No. 40-22). The request was submitted by the Applicant pursuant to the HAA and amended the two conditions of approval to comply with the objective standards of the City’s Inclusionary Zoning Regulations. As a result, the applicant is able to pursue a project that fully complies with all objective City standards to be processed under the HAA.On March 14, 2023, the Planning Commission approved the Site Development Review Permit for six neighborhoods that includes the construction of 459 conventional single-family homes, 14 zero-lot-line single-family homes, 100 townhomes, and a landscape master plan. Project’s Relationship to State Housing Laws and PolicyThe Applicant designed the project under state housing laws which limit the City’s discretion on the project. The HAA, the Housing Crisis Act of 2019 (Senate Bill 330), and various other state laws prevent or restrict the ability to deny projects that are consistent with applicable, objective standards in effect at the time when the application is deemed complete. The Applicant designed the East Ranch development project to be consistent with the applicable objective standards of the General Plan and Eastern Dublin Specific Plan, the existing Planned Development Zoning Stage 1 Development Plan (Ordinance No. 32-05 and Ordinance No. 45-08), and other policies, as a means of limiting the City’s discretion. The HAA prohibits the City from denying applications for such projects absent an immediate threat to public health or safety that cannot be mitigated, as determined by objective standards that were in place when the application was submitted. In essence, the HAA provides that once a city designates a site for housing in its General Plan, it must allow that housing to be developed except in very limited circumstances involving immediate threats to public health and safety. Current RequestThe Applicant requests the City Council consider an alternative method of compliance with the Inclusionary Zoning Regulations and the formation of a Community Facilities District (CFD) for thepurpose of financing the acquisition and construction of public improvements within the development (Attachment 1). The Applicant’s requests are exceptions to the objective standards of the City and therefore do not have to be approved under the HAA. These requests are subject to discretion of the City Council.
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AnalysisInclusionary ZoningThe City’s Inclusionary Zoning Regulations (DMC Chapter 8.68) require all new residential projects of 20 units or more to construct 12.5% of the total number of units as affordable units. The units shall reflect the range of number of bedrooms provided in the project as a whole but may be smaller in size. The proposed East Ranch project generates a requirement to provide 72 affordable units (i.e., 573 units x 12.5% = 72 units).The East Ranch project is currently required to comply with the Inclusionary Zoning Regulations by conforming to the objective standards in that Ordinance summarized as follows:
In-Lieu Fee: 40% of the total number of affordable units within the development (29 units) may be satisfied via payment of an “In-Lieu Fee” as provided by the City’s Impact Fee Schedule.
On-site Below-Market-Rate Units: 60% of the total number of affordable units within the development (43 units) shall be developed on site, with 40% of those (17 units) for low-income households and 60% of those (26 units) for moderate-income households.
Below-Market-Rate Units shall be dispersed throughout all the neighborhoods, in rough proportion to the number of market rate units in each neighborhood and constructed concurrently with the market rate units in the same neighborhood.
Execution of an agreement imposing appropriate resale controls and/or rental restrictions on the affordable units shall be required in accordance with DMC Chapter 8.68.
The Applicant/Developer shall implement and conform to all objective requirements of DMC Chapter 8.68.Pursuant to DMC Section 8.68.040.E, a developer may request an exception to the construction of 12.5% of the total number of dwelling units as affordable units. All exceptions require City Council approval, which shall be obtained at or prior to the last discretionary approval for the project, in this case the formation of a CFD. The Applicant has proposed an alternate method of compliance with the Inclusionary Zoning Regulations. This alternate approach to affordable housing is an exception to the objective standards of the Inclusionary Zoning Regulations, and thus the HAA does not restrict the City Council’s discretion when considering this exception. The proposed alternate affordable housing approach is similar to the alternate method of compliance previously reviewed and approved by the City Council with the adoption of Ordinance No. 11-21 in December 2021. The Applicant affordable housing proposal is summarized as follows:
Payment of in-lieu fees for 18 units (to satisfy 35% of the affordable requirement). Based on the current in-lieu fee of $228,994.42/unit, this payment would be $5,724,860.50.
Construction of 18 deed-restricted units at the moderate-income level. These units would consist of 14 zero-lot-line single-family units and 4 townhomes (to satisfy 25% of the affordable requirement).
Dedication of the two-acre Semi-Public site for a future affordable housing project to satisfy the requirement for 36 units (to satisfy 40% of the affordable requirement).
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Construction of 50 deed-restricted accessory dwelling units at the low-income level. Staff had recommended approval of the similar proposal in December 2021. Community Facilities DistrictA CFD is a special financing district that provides a mechanism for funding specific facilities and services as authorized through the Mello-Roos Community Facilities Act of 1982 (Gov. Code, Section 53311 et seq.). The Act allows any county, city, special district, school district, or joint powers authority to establish a CFD in order to levy special taxes for the purpose of financing public facilities and services. The special taxes can then be used to pay off any bonds issued to fund facilities and improvements, or as an ongoing revenue source to pay for certain services.A “Facilities CFD” can be used to fund a range of public facilities and is generally applicable for any real or other tangible property with an expected useful life of five or more years that will be owned and operated by the local agency. Examples of authorized improvements include but are not limited to parks, roads, bridges, and utility systems. A Facilities CFD is typically financed through the issuance of bonds, which are repaid over time by the property owners within the district.A “Services CFD” can be used (even in conjunction with a Facilities CFD) to fund certain ongoing services like police protection, fire protection and suppression, ambulance and paramedics, maintenance and lighting of parks, parkways, roads, and open space, flood and storm protection,and environmental cleanup and remediation. The creation of both CFDs requires approval of the local agency. Revenue to operate a Services CFD is generated through assessments levied on the properties within the district.The Vesting Tentative Tract Map Condition of Approval No. 127 (Resolution No. 140-21) notes that the Applicant cannot object to the formation of any CFD. The Applicant is now seeking approval of the first final map and has started the Services CFD formation process by providing an initial financing proposal for Staff review. The Services CFD will fund maintenance of the public streets, two public parks, and the storm drain systems within the East Ranch development. Based on the City’s current maintenance costs for similar items throughout the City, a contingency, and administration costs, the proposed assessment on each unit within the district is approximately $1,119 per year for maintenance of public infrastructure (Attachment 2). The adjusted property tax to include the Services CFD will equal approximately 1.43% of the estimated home price. The Applicant is requesting the City Council’s consideration of the formation of a Facilities CFD to fund construction of certain public infrastructure and development impact fees associated with the project, including grading, street improvements, storm drain, water, and sewer facilities. The inclusion of water and sewer facilities within the Facilities CFD will require a separate Joint Community Facilities Agreement between the Applicant, the City, and Dublin San Ramon ServicesDistrict. The Applicant’s proposed annual CFD special tax rate (Services CFD and Facilities CFD), when combined with all other property taxes would, on average, equal approximately 1.70% of the estimated home price. The bonding capacity of the Facilities CFD is estimated to yield approximately $38.5 million in net proceeds based on the special tax rate, assuming annual escalation of 2% per year and an interest rate on the bonds of 5.50% (net of typical costs for underwriter discount, reserve funds, capitalized interest, and incidental expenses). The proposed
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Facilities CFD would be structured to consist of six special tax zones, one for each of the various lot/product types, as shown in the following table.Zone #Product Type Annual Special Tax (per unit)Zone 1 65’ x 100’ lots $7,955Zone 2 55’ x 95’ lots $6,039Zone 3 50’ x 110’ lots $6,388Zone 4 49.5’ x 80’ lots $4,776Zone 5 Cluster lots $3,959Zone 6 Townhome units $1,904For additional context, the City of Dublin currently has two CFDs, Dublin Crossing CFD No. 2015-1 and Dublin Crossing CFD No. 2017-1, which were established as part of the Boulevard development to fund the acquisition and construction of infrastructure and to fund the maintenance of a portion of the infrastructure costs constructed in the development. The Dublin Crossing Facilities CFD (No. 2015-1) is funding eligible improvements constructed by the developer, including backbone street improvements, storm drain improvements, sewer and water improvements, landscaping, fencing, as signage, as well as various development-related fees. The Dublin Crossing Services CFD (No. 2017-1), on the other hand, is limited to only maintenance of landscaping within public street medians and maintenance of streetlights within the public street rights-of-way in the Boulevard development. Typical per-unit assessments for Fiscal Year 2022-23 for the Dublin Crossing Facilities CFD range from $3,760 to $5,603, and for the Dublin CrossingServices CFD range from $46.24 to $69.34, depending on product type and unit square footage. It is difficult to compare CFD tax rates between projects as a variety of factors can impact this rate, such as property value, property type, use of property, number of units within the district boundary, capital improvement scope, maintenance scope, duration of tax, and changes to tax rates over time, which all come together to determine assessment rates within a district. ConclusionThe City Council is asked to receive a presentation and provide feedback regarding the Applicant’s proposal for an alternative method to satisfy the requirements of the Inclusionary Zoning Regulations and the formation of a Facilities Community Facilities District for the construction and acquisition of improvements.
ENVIRONMENTAL REVIEW:The City Council is receiving a presentation and providing feedback on the Applicant’s affordable housing proposal and the formation of a Facilities CFD and no formal action will be taken at this time. This discussion is not subject to the requirements of the California Environmental Quality Act (CEQA) as it does not have the potential to result in a direct physical change in the environment or a reasonably foreseeable indirect change in the environment and, thus, does notmeet the definition of a project under CEQA Guidelines Section 15378.
STRATEGIC PLAN INITIATIVE:None.
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NOTICING REQUIREMENTS/PUBLIC OUTREACH:A copy of this Staff Report was provided to the Applicant and the City Council Agenda was posted.
ATTACHMENTS:1) Trumark Letter dated March 31, 20232) Maintenance Cost Estimate
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