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HomeMy WebLinkAboutReso 89-23 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 Reso. No. 89-23, Item 4.17, Adopted 08/15/2023 Page 1 of 2 RESOLUTION NO. 89 – 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A Reso. No. 89-23, Item 4.17, Adopted 08/15/2023 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: Councilmembers Hu, Josey, McCorriston, Qaadri and Mayor Hernandez NOES: ABSENT: ABSTAIN: ______________________________ Mayor ATTEST: _________________________________ City Clerk DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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           Exhibit A DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -2- 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”).          DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -3- (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          DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -4- 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          DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -5- 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          DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -6- 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          DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -7- 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          DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -8- 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.          DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -9- 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.          DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -10- 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:          DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -11- 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.          DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A EXHIBIT A Development Site Legal Description -1- DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A w Oc-,0(0 0 a:i 0(0 C>C\.I :z N90 °00'00"E 557.07' 10 P /SP SITE w Or.. Oo C, 0) Oo C> (0 :z / � ..--------------------------------��' NB9 °oa • 50"W �re 'iS<r:, t§l490, 10 I t:?�V''?)�• ---------------------------4----------,------------------------------ 0 30 60 120 SCALE: 1 "=60' 08-03-2023 5:54pm Eddie Perez P:\ 19343-T\DES\OVERALL EXHIBITS\D-EXH-P SP SITE PLAN.DWG DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -1- EXHIBIT B Inclusionary Unit Map Attached          DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 10001000 SP NEIGHBORHOOD PARK NEIGHBORHOOD PARK OPEN SPACE (BASIN) OP E N S P A C E ( W E T L A N D ) OPEN SPACE (WETLAND) OPEN SPACE (BASIN) BASIN SE R I E S O F B A S I N S S E R I E S O F B A S I N S 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A EXHIBIT C Resale Restrictions and Option to Purchase Agreement Attached           -1- DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -2- 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: DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -3- 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -4- 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -5- 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, DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -6- 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -7- 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -8- 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A EXHIBIT A Property Description DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A EXHIBIT D Legal Description of Donation Parcel [To Be Inserted]           -1- DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A EXHIBIT E Donation Agreement Attached           -1- DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 4 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 5 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 6 (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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 7 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 8 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 9 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 10 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 11 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 12 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 13 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). DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 14 IN WITNESS WHEREOF, this Agreement is executed by the Parties as of the Effective Date. Nonprofit: By:___________________________________ By:___________________________________ Developer: By:___________________________________ City: By:___________________________________ DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A Exhibit A EXHIBIT A LEGAL DESCRIPTION That real property located in the City of Dublin, County of Alameda, State of California, described as follows: DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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:___________________________________ DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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: DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A Exhibit C EXHIBIT “C” OPTION AGREEMENT [To Be Attached] 5428396.2 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A -1- EXHIBIT F ADU Regulatory Agreement Attached 5405636.4          DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A Second Unit Reg Agmt / Name / Date 2 Rev 12/2017 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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, DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 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. DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A Notary Acknowledgement [Insert Here] DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A Exhibit A LEGAL DESCRIPTION DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A Exhibit B MAP DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A EXHIBIT C ANNUAL SURVEY SAMPLE DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A 5431268.2 DocuSign Envelope ID: 1FACBEBB-61A8-4E1B-9825-BD20EFEB0F7A