HomeMy WebLinkAbout5.8 Dublin Centre Affordable Housing Agreement (PLPA-2023-00020)r
DUBLIN
CALIFORNIA
STAFF REPORT
CITY COUNCIL
Agenda Item 5.8
DATE: February 4, 2025
TO: Honorable Mayor and City Councilmembers
FROM: Colleen Tribby, City Manager
SU B.ECT: Dublin Centre Affordable Housing Agreement (PLPA-2023-00020)
Prepared by: Jason Earl, Senior Management Analyst
EXECUTIVE SUMMARY:
The City Council will consider approving an Affordable Housing Agreement with Landsea Homes
of California, LLC, for the Dublin Centre residential project. The Affordable Housing Agreement
addresses the Applicant's alternative method of compliance with the Inclusionary Zoning
Regulations previously approved by the City Council in the project development agreement.
STAFF RECOMMENDATION:
Adopt the Resolution Approving an Affordable Housing Agreement Between the City of Dublin and
Landsea Homes of California, LLC for the Dublin Centre Residential Project.
FINANCIAL IMPACT:
The costs associated with processing this request are borne by the Applicant. The Applicant will
satisfy a portion of their inclusionary obligation through the payment of $1 million to the City's
Affordable Housing Fund for first-time homebuyers purchasing new homes within the Dublin
Centre Project.
DESCRIPTION:
Background
The approximately 54-acre Dublin Centre (DC) residential project site is an undeveloped
property, located north of Dublin Boulevard between Tassajara Road and Brannigan Street and
extends to the north of Gleason Drive as shown in Figure 1. The project includes 500 residential
units, 105 accessory dwelling units (ADUs), approximately 38,000 square feet of retail commercial
development along Finnian Way, a two -acre public park, community building, and dedication of a
site for affordable housing.
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Figure 1. Location Map
On February 15, 2022, following an extensive community engagement process, the City Council
approved the Preferred Plan for the DC. In November and December 2022, the City Council held a
public hearing and certified the Final Environmental Impact Report (Resolution 135-22),
approved General Plan and Eastern Dublin Specific Plan Amendments (Resolution 136-22), and
adopted Ordinances approving Planned Development Zoning with Stage 1 and Stage 2
Development Plans and approving a Development Agreement (Ordinances 15-22 and 16-22) for
the DC.
The Applicant is currently requesting approval of an Affordable Housing Agreement that
implements the alternative method of compliance with the Inclusionary Zoning Regulations that
was approved in the project Development Agreement.
Analysis
The project is subject to the City's Inclusionary Zoning Regulations (IZR) (DMC Chapter 8.68). In
accordance with the regulations in place at the time the project was approved, the Applicant has
an obligation to provide 63 affordable units (38 moderate -income and 25 low-income units).
These regulations allow for an alternative method of compliance at the discretion of the City
Council (DMC 8.68.040.E). The project Development Agreement (Section 7 - Affordable Housing)
outlines the developer's alternative method of compliance with these regulations.
The following is a summary of the Applicant's alternative method of compliance to satisfy the
Inclusionary Zoning Regulation:
• Provide six deed -restricted townhomes affordable to moderate -income households;
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• Provide 105 deed -restricted ADUs with half affordable to low-income households at an
affordable rent, and half affordable to moderate income households at an affordable rent;
• Dedicate a 1.88 acre (net) Semi -Public site for a future affordable housing project; and
• Contribute $1,000,000 to the City's Affordable Housing Fund for first-time homebuyers
purchasing homes within the DC project.
An Affordable Housing Agreement has been prepared for the project, which sets forth the manner
in which the developer will satisfy the affordable housing obligation for the DC project. The
Resolution approving the Affordable Housing Agreement is included as Attachment 1 with the
draft agreement included as Attachment 2.
ENVIRONMENTAL DETERMINATION:
On April 2, 2022, the City issued a Notice of Preparation for an Environmental Impact Report
(EIR) and held a public scoping meeting on April 13, 2022. Subsequently, a Draft EIR was
prepared for the proposed project and circulated for a 45-day public review period. The comment
period was open from July 22, 2022 to September 6, 2022. The City received eight comment
letters during the public review period. Responses were prepared for each of the comments
received by the City. The Draft EIR, comments and associated responses, and changes and
clarifications to the Draft EIR constitute the Final EIR. On November 15, 2022, the City Council
adopted Resolution No. 135-22 certifying the Final Environmental Impact Report.
Pursuant to the requirements of the CEQA, the City determined that the DC project qualifies for an
exemption under Government Code Section 65457 and CEQA Guidelines Section 15182(c). The
Affordable Housing Agreement qualifies for a specific plan exemption and does not require
subsequent environmental review or the preparation of an additional CEQA document (EIR or
MND).
STRATEGIC PLAN INITIATIVE:
Strategy 3: Housing Inclusivity and Affordability
Objective A: Implement the goals, policies, and programs in the 2023-2031 Housing Element.
Objective B: Support efforts to produce housing affordable at all levels of income.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
The City Council Agenda was posted and a copy of this Staff Report was provided to the Applicant.
ATTACHMENTS:
1) Resolution Approving an Affordable Housing Agreement Between the City of Dublin and
Landsea Homes of California, LLC for the Dublin Centre Residential Project
2) Exhibit A to the Resolution - Affordable Housing Agreement
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Attachment I
RESOLUTION NO. XX — 25
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
APPROVING AN AFFORDABLE HOUSING AGREEMENT BETWEEN THE CITY OF DUBLIN
AND LANDSEA HOMES OF CALIFORNIA LLC, FOR THE DUBLIN CENTRE RESIDENTIAL
PROJECT
(PLPA-2023-00020)
(APNs 985-0051-004, 985-0051-005, 985-0051-006, 985-0052-024, AND 985-0052-025)
WHEREAS, Landsea Homes of California, LLC ("Applicant") is seeking approval of an
Affordable Housing Agreement for the 500-unit Dublin Centre (DC) Residential Project, which is a
project on approximately 54 acres located north of Dublin Boulevard between Dublin Boulevard
and north of Gleason Drive, and between Tassajara Road and Brannigan Street; and
WHEREAS, on December 6, 2022, the City Council adopted Ordinance No. 15-22
approving a Development Agreement between the City of Dublin and SCS Development Company
for the Project which set forth the method of compliance with the Inclusionary Zoning Regulations,
and the Development Agreement was subsequently assigned to the Applicant; and
WHEREAS, the Applicant is required 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 that were in place at the time the
Development Agreement was adopted, required 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 could request an alternative method of compliance with the
requirements of the Inclusionary Zoning Regulations at the discretion of the City Council; and
WHEREAS, the Applicant's predecessor did propose, and the City Council approved in
adopting the project Development Agreement, an alternative method of compliance; and
WHEREAS, pursuant to the requirements of the CEQA, the City determined that the Dublin
Centre project qualifies for an exemption under Government Code Section 65457 and CEQA
Guidelines Section 15182(c). Therefore, the Affordable Housing Agreement 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 hereby
approves the Affordable Housing Agreement between the City of Dublin and Landsea Homes of
California, LLC, for the Dublin Centre project attached as Exhibit A to this Resolution.
BE IT FURTHER RESOLVED that the City Manager is authorized to execute the
amendments to the agreements, attached hereto as Exhibit A, and make any necessary, non -
substantive changes to carry out the intent of this Resolution.
Reso. No. XX-25, Item X.X, Adopted XX/XX/2025 Page 1 of 2
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PASSED, APPROVED AND ADOPTED this 4th day of February 2025, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
City Clerk
Reso. No. XX-25, Item X.X, Adopted XX/XX/2025 Page 2 of 2 5
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Attachment 2
Exhibit A to the Resolution
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Clerk &
Community Development Department
No fee for recording pursuant to
Government code Section 27383
AFFORDABLE HOUSING AGREEMENT
(Dublin Centre (DC) Residential Project)
THIS AFFORDABLE HOUSING AGREEMENT is hereby entered into as of
February 4, 2025, by and between the City of Dublin, a California municipal corporation (the
"City"), and LANDSEA HOMES OF CALIFORNIA LLC., a Delaware limited liability
company (the "Developer").
RECITALS
A. Developer is the developer of approximately 54 acres of undeveloped real property
in the City of Dublin located within the Eastern Dublin Specific Plan, known as the Dublin Centre
(DC) Project (the "Development Site"). 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 up to 500 market rate housing units, up to 100 affordable units and
approximately 100 accessory dwelling units (together, the "Dublin Centre (DC) Residential
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
Requirements permit alternate methods of compliance, allowing the developer to satisfy 40% of
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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 Dublin Centre (DC) Residential
Project require the Developer to provide sixty-three (63) affordable units. The Developer has
proposed an alternate method of satisfying the Inclusionary Housing Requirements, and the City
Council approved such alternate method in the Development Agreement for the Project by and
among the City, Award Homes, Inc., SCS Development, and Santa Clara Valley Housing Group,
Inc. (the "Original Developers"), dated December 6, 2022 and recorded in the official records of
Alameda County on January 19, 2023 as Instrument No. 2023005968, as partially assigned to
Developer pursuant to the Partial Assignment and Assumption of Development Agreement
between the Original Developers and Developer and recorded in the official records of Alameda
County on May 22, 2024 as Instrument No. 2024063873 (the "Development Agreement"). The
alternate method of satisfying the Inclusionary Housing Requirements set forth in Section 7.3 of
the Development Agreement requires the Developer to (i) construct and sell six (6) Townhomes
to Moderate Income Households at an Affordable Housing Cost, (ii) either, with respect to the
"Public/Semi-Public Site" within Planning Area 2 of the Development Site, (A) enter into an
agreement with the City that ensures the completion of 100 lower -income units, or (B) dedicate
the site to the City or its designee to be used for the construction of an affordable housing project,
(iii) construct and sell a minimum of eighty-five (85) homes with accessory dwelling units which
if rented, half of which are to be deed restricted and may only be rented to Low Income Households
at an affordable rent, and half of which are to be deed restricted and may only be rented to Moderate
Income Households at an affordable rent, and (iv) pay a fee of $1,000,000 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 Dublin Centre (DC) Residential 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 Fee.
(a) Affordable Housing Fund. Developer shall pay City a fee of $1,000,000 to
be deposited into City's Affordable Housing Fund (the "Fee"). The City shall expend the Fee
solely for making subordinate loans to first time homebuyers purchasing new homes within the
Dublin Centre (DC) Residential Project until such time as all for -sale units in the Dublin Centre
(DC) Residential Project have been sold at least once. The amounts and terms of such loans shall
be in the discretion of the City.
(b) Payment of Fee. The entirety of the Fee shall be paid at the time of the
issuance of the first residential building permits for the Dublin Centre (DC) Residential Project
(excluding building permits issued for model homes). If the Developer fails to pay the Fee when
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due, the City may withhold any further City approvals for the Dublin Centre (DC) Residential
Project, including without limitation building permits and certificates of occupancy.
3. Moderate Income Homes. Developer shall construct and sell six (6) townhomes
in the Dublin Centre (DC) Residential Project to Moderate Income Households at an Affordable
Sales Price (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 Dublin Centre (DC) Residential Project as reviewed and approved through the Site
Development Review by the Planning Commission's approval of Resolution No. 24-02 on
February 13, 2024; 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 six
(6) Moderate Income Inclusionary Units shall reflect the townhome product mix as follows. Each
of the three (3) one -bedroom units will be at least 1,048 square feet in size; each of the two (2)
two -bedroom units will be at least 1,299 square feet in size; and the one (1) three -bedroom unit
will be at least 1,533 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
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.
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(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 residential 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 8.68.050.0 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 $3,057 per unit for Below Market
Ownership Units, and is set at $1,708 per unit for Below Market Rate Secondary (ADU) Units and
is subject to periodic adjustment.
4. Dedication of Affordable Housing Site. Consistent with Section 7.3.2(b) of the
Development Agreement, Developer shall, not later than the first residential building permit in the
Dublin Centre (DC) Residential Project, exclusive of permits for model homes, or such later time
as may be authorized by a future clarification or amendment to the Development Agreement,
deliver to City for recordation an irrevocable offer to dedicate that certain parcel of real property
designated in the Development Agreement as the "Public/Semi-Public Site," and further described
in Exhibit D hereof (the "Dedication Parcel") substantially in the form of Exhibit E hereof (the
"Dedication Deed"). The Dedication Parcel consists of an approximately 1.88 acre portion of the
Dublin Centre (DC) Residential Project which has been designated for Public/Semi-Public land
uses, which City and Developer have determined is of sufficient size for the construction of an
affordable housing project thereon with not less than one hundred lower income units. The
Dedication Parcel is identified as the affordable housing site on the Vesting Tentative Tract Map
for the Dublin Centre (DC) Residential Project, as approved by the City Planning Commission on
February 13, 2024 by Resolution No. 24-02. Accordingly, the parties hereto have determined that
Dedication Parcel meets the requirements of Section 7.3.2(b) of the Development Agreement,
notwithstanding that the Dedication Parcel is only a portion of the real property designated for
Public/Semi-Public land uses. Developer's delivery of the deed shall be deemed an authorization
for City to record the Dedication Deed. Prior to the delivery of the Dedication Deed, Developer
shall complete the rough grading of the Dedication Parcel and associated improvements (including
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street frontage improvements, including, but not limited to, curb, gutter, sidewalk, landscape,
irrigation, and access roadways on all sides of the Dedication Parcel that are adjacent to current
and future roadways) all as specified in the approved tentative map associated with the Dedication
Parcel, if any, and provide evidence acceptable to the City Engineer demonstrating that the land to
be dedicated (including any imported fill) meets applicable environmental standards for residential
development or such lesser standard acceptable to the City.
(a) Disclaimer of Representations and Warranties by Developer. Neither
Developer nor any of its agents, employees or contractors has made and is not now making, and
City has not relied upon and will not rely upon (directly or indirectly), any warranties or
representations of any kind or character, express or implied, oral or written, past, present or future,
with respect to the Dedication Parcel, including, but not limited to, warranties or representations
as to (a) matters of title, (b) environmental matters relating to the Dedication Parcel or any portion
thereof, (c) geological conditions, including, without limitation, subsidence, subsurface
conditions, water table, underground water reservoirs, water percolation, limitations regarding the
withdrawal of water and earthquake faults and the resulting damage of past and/or future
earthquakes, (d) whether, and to the extent to which, the Dedication Parcel or any portion thereof
is affected by any stream (surface or underground), body of water, flood prone area, flood plain,
floodway or special flood hazard, (e) drainage, (f) soil conditions, including the existence of
instability, past soil repairs, soil additions or conditions of soil fill, or susceptibility to landslides,
or the sufficiency of any undershoring, (g) zoning to which the Dedication Parcel or any portion
thereof may be subject, (h) the availability of any utilities to the Dedication Parcel or any portion
thereof including, without limitation, water, sewage, gas and electric, (i) usages of adjoining
projects or the development of the Dublin Centre (DC) Residential Project, (j) access to the
Dedication Parcel or any portion thereof, (k) the value, compliance with the plans, size, location,
age, use, design, quality, descriptions, suitability, structural integrity, operation, title to, or physical
or financial condition of the Dedication Parcel or any portion thereof, (1) any income, expenses,
charges, liens, encumbrances, rights or claims on or affecting or pertaining to the Dedication Parcel
or any part thereof, (m) the presence of hazardous substances in or on, under or in the vicinity of
the Dublin Centre (DC) Residential Project, (n) the condition or use of the Dedication Parcel or
compliance of the Dedication Parcel with any or all past, present or future federal, state or local
ordinances, rules, regulations or laws, building, fire or zoning ordinances, disability laws
(including Americans with Disabilities Act and the Fair Housing Act), codes or other similar laws,
(o) the existence or non-existence of underground storage tanks, (p) any other matter affecting the
stability or integrity of the Dedication Parcel, (q) the potential for further development of the
Dedication Parcel, (r) the existence of vested land use, zoning or building entitlements affecting
the Dedication Parcel, (s) the Development Agreement, (t) the merchantability of the Dedication
Parcel or fitness of the Dedication Parcel for any particular purpose (City affirming that City has
not relied on the skill or judgment of Developer or any of its agents, employees or contractors to
select or furnish the Dedication Parcel for any particular purpose, and that Developer makes no
warranty that the Dedication Parcel is fit for any particular purpose) or (u) tax consequences
(including, but not limited to, the amount, use or provisions relating to any tax credits). City
further acknowledge that any information of any type which City has received or may receive from
Developer or any of its agents, employees or contractors including, without limitation, any
environmental reports and surveys, is furnished on the express condition that City shall make an
independent verification of the accuracy of such information, all such information being furnished
without any representation or warranty whatsoever.
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(b) Dedication "As Is". City represents that it is a knowledgeable, experienced
and sophisticated party and that it has relied and shall rely solely upon (a) its own expertise and
that of its consultants in acquiring the Dedication Parcel, and (b) its own knowledge of the
Dedication Parcel based on its investigations and inspections of the Dedication Parcel. City has
conducted such inspections and investigations of the Dedication Parcel as City deemed or shall
deem necessary, including, but not limited to, the physical and environmental conditions of the
Dedication Parcel and shall rely upon same. City shall assume the risk that adverse matters,
including, but not limited to, adverse physical and environmental conditions, may not have been
revealed by its inspections and investigations. City acknowledges and agrees that Developer shall
dedicate and convey to City and City shall accept the Dedication Parcel "as is, where is," with all
faults and defects (latent and apparent). Except as set forth in this Agreement, City further
acknowledges and agrees that there are no oral agreements, warranties or representations,
collateral to or affecting the Dedication Parcel by Developer or any agent, employee or contractor
of Developer or any third party. Developer is not liable or bound in any manner by any oral or
written statements, representations, or information pertaining to the Dedication Parcel furnished
by any real estate broker, contractor, agent, employee, servant or other person, unless the same are
specifically set forth in this Agreement. City acknowledges that the no monetary consideration
for the Dedication Parcel reflects the "as is" nature of this donation and any faults, liabilities,
defects or other adverse matters that may be associated with the Dedication Parcel. City has fully
reviewed the disclaimers and waivers set forth in this Agreement with its counsel and understands
the significance and effect thereof. City acknowledges and agrees that the disclaimers and other
agreements set forth in this Section are an integral part of this Agreement.
(c) Developer Released From Liability. Except as expressly contained within
this Agreement, City and anyone claiming by, through or under City hereby waives its right to
recover from and fully and irrevocably releases Developer, and its each of its employees, officers,
directors, affiliates, members, managers, parent, subsidiaries, successors and assigns (collectively,
"Released Parties") from any and all claims, responsibility and/or liability of any and every kind
or character, known or unknown, that it may now have or hereafter acquire against any of the
Released Parties for any costs, loss, liability, damage, expenses, demand, action or cause of action
to the extent arising from or related to the condition (including any construction defects, errors,
omissions or other conditions, latent or otherwise, and the presence in the soil, air, structures and
surface and subsurface waters of materials or substances that have been or may in the future be
determined to be hazardous substances or otherwise toxic, hazardous, undesirable or subject to
regulation and that may need to be specially treated, handled and/or removed from the Dedication
Parcel under current or future federal, state and local laws regulations or guidelines), valuation,
salability or utility of the Dedication Parcel, or its suitability for any purpose whatsoever. This
release includes claims of which City is presently unaware or which City does not presently suspect
to exist which, if known by City, would materially affect the City's release to Developer. In this
connection and to the extent permitted by law, City hereby agrees, represents, and warrants that
City realizes and acknowledges that factual matters now unknown to it may have given or may
hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs,
losses and expenses which are presently unknown, unanticipated and unsuspected, and City further
agree, represent and warrant that the waivers and releases herein have been negotiated and agreed
upon in light of that realization and that, subject to the terms of this Section, City nevertheless
hereby intend to release, discharge and acquit Developer and the Released Parties from any such
unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and
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expenses. Subject to the terms of this Section, City specifically waive the provision of California
Civil Code Section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.
(d) Future Conveyances by City. Should the City convey the
Dedication Parcel or any portion thereof, it shall ensure that terms equivalent to the
Sections 4(a) through 4(c) for the benefit of Developer are included in any agreement
pursuant to or through which the conveyance is completed.
5. Low and Moderate 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 a minimum of one -hundred -and -five (105) attached accessory dwelling units which
shall, if rented, be available and restricted to Lower Income Households and Moderate Income
Households (the "Low/Mod ADU Inclusionary Units") in accordance with the following
requirements:
(a) Unit Location. Developer shall construct the Low/Mod 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/Mod
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. Fifty percent of the Low/Mod ADU Inclusionary
Units shall be at least 500 square feet in size and the other fifty percent of the Low/Mod ADU
Inclusionary Units shall be at least 475 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/Mod 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/Mod 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. Half of the Regulatory Agreements shall restrict the Low/Mod Inclusionary Unit to
Low Income Households, and half of the Regulatory Agreements shall restrict the Low/Mod
Inclusionary Unit to Moderate Income Households. The income levels of each of the Low/Mod
Inclusionary Units shall be as identified in the Inclusionary Unit Map. The Regulatory Agreement
shall serve as the agreement required by Section 8.68.050.0 of the Inclusionary Housing
Requirements. Upon the initial sale of a single family home with a Low/Mod ADU Inclusionary
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Unit and the recordation of the Regulatory Agreement against such home, Developer shall have
no further obligations or liabilities with respect to such Low/Mod 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/Mod ADU Inclusionary Unit shall thereafter be the burden
of the then owner. Developer shall remain responsible for compliance with this Agreement as to
all other Low/Mod 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/Mod ADU Inclusionary
Unit shall not constitute a default or breach by Developer. The Low/Mod 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 Townhome which includes a Low/Mod 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 for Secondary Units (ADU's) is
currently set at $1,708 per unit 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
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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
with such sale, transfer or assignment.
(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.
(d) Permitted Assignments. Pursuant to the Purchase and Sale Agreement and
Joint Escrow Instructions dated as of June 24, 2022, as amended, KL LB BUY 2 LLC, a Delaware
limited liability company ("Nominee"), as nominee of Developer, will acquire the Development
Site. Nominee has granted to Developer the option to purchase the Dedication Parcel.
Notwithstanding the foregoing, no approval of the City Manager shall be required pursuant to
Section 8(a) and (b) for (i) the Development Site to be conveyed to Nominee and (ii) Nominee's
conveyance of portions of the Development Site to Developer in phases; provided that no release
of liability shall occur until a duly executed written assignment and assumption of liability meeting
the requirements of Section 8 (b), (c) and (d) has been provided to City, in a form which is
reasonably acceptable to City. With respect to assignments permitted under this Section 8(d), the
written assignment and assumption of liability shall clearly state which party has responsibility for
each of the specific responsibilities under this Agreement. Upon written notice to the City of any
such conveyance, Nominee shall be released from any obligations and liability hereunder only
with respect to the portion of the Development Site conveyed to Developer, provided that such
assigned obligations are expressly assumed by Developer.
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
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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
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:
If to City:
Landsea Homes Of California LLC
3130 Crow Canyon Place, Suite 325
San Ramon, CA 94583
Attention: Tom Baine and David Mello
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attention: City Manager
With copy to City Attorney
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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.
16. Counterparts. This Agreement may be executed in counterparts, which when
taken together shall constitute a single signed original as though all parties had executed the same
page.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
Attest
Marsha Moore, City Clerk
Approved as to Form
John Bakker, City Attorney
CITY OF DUBLIN
By:
Colleen Tribby, City Manager
LANDSEA HOMES OF CALIFORNIA
LLC., a Delaware limited liability company
Signed by:
fowl !sailA ,
By: 40F73RFC411n1497
Tom Blaine, Division President
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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
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
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EXHIBIT A
Development Site Legal Description
The Land referred to herein below is situated in the County of Alameda, State of California,
and is described as follows:
PARCEL ONE:
PARCEL 2 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13
THROUGH 18, INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
PARCEL TWO:
PARCEL 3 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13
THROUGH 18, INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
PARCEL THREE:
PARCEL 4 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13
THROUGH 18, INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
APN: 985-0051-006 (AFFECTS: PARCEL ONE); 985-0052-024 (AFFECTS: PARCEL TWO)
and 985-0052-025 (AFFECTS: PARCEL THREE) (APN provided for informational purposes
only.)
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EXHIBIT B
Inclusionary Unit Map
[Attached]
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i
GLrIsSON
AUSUN BQILEVAR❑ -
11 LOCATION OF 85 LOW
AND MODERATE ADU
I. in mum INCLI,JSIONARY UNITS
LOCATION OF 6
MODERATE TOWRHOME
UNITS
-N
EXHIBIT B-1
INCLUSIONARY UNIT MAPS
CITY OF DUBLIN, ALAMEDA COUNTY, CALIFORNIA
n
RUGGERII--JENSEN-AZAR
C N O I N E E R 5 • PLANNERS • SURVEYORS
4590 CHABOT DRIVE, SUITE 200 PLEASANTON, CA 94599
PHONE: (025) 227-9100 FAX: (525) 227-9300
DATE: 61A? 14, 2024 JOB NO. 171026 SHEET 1 OF 1
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EXHIBIT C
BMR Resale Restrictions and Option to Purchase Agreement
[Attached]
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Recording 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
City Clerk Department\Agreements/Contracts\0600-25
Development:
Owner:
APN:
(Space Above This Line For Recorder's Use Only)
RESALE RESTRICTION AGREEMENT
AND OPTION TO PURCHASE
City of Dublin Affordable Housing Program
(Inclusionary Units)
NOTICE: THIS DOCUMENT CONTAINS RESTRICTIONS ON THE USE,
SALE AND REFINANCING OF THIS PROPERTY.
This RESALE RESTRICTION AGREEMENT AND OPTION TO PURCHASE (this
"Agreement") is entered into by and between the CITY OF DUBLIN, a California municipal
corporation (the "City") and Owner Name(s) as appears on title ("Owner") regarding certain
improved real property which is more particularly described in Exhibit A attached hereto and
incorporated herein and commonly known as Address, Dublin, CA 94568 (the "Property")
effective as of Date (the "Effective Date"). City and Owner are hereinafter collectively referred
to as the "Parties."
RECITALS
WHEREAS, pursuant to its Inclusionary Zoning Regulations (Dublin Municipal Code
Section 8.68), the City has established a program to further its goal of creating affordable
home ownership opportunities for low- and moderate -income households by providing for the
construction and sale of certain homes at a price below their market rate (the "Program");
WHEREAS, Owner qualifies as an Eligible Household under the Program and intends
to occupy and maintain the Property as Owner's principal residence;
WHEREAS, to maintain and preserve the Property as housing affordable to eligible
moderate -income purchasers, it is necessary to restrict the use and resale of the Property
through imposition of the occupancy and resale restrictions set forth herein. These
restrictions are intended to prevent uses of the Property for purposes that are incompatible
with the Program, and to prevent unwarranted gains from sale of the Property at an
BMR Res Rest Agmt / Name / Date 1 Rev November 2024
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unrestricted price. The Owner's obligations set forth in this Agreement as secured by the
Performance Deed of Trust, and the Option granted to the City hereby, are intended to
provide the necessary occupancy and resale restrictions to ensure that the Property is used,
maintained, and preserved as housing affordable to eligible low- and moderate -income
purchasers;
WHEREAS, the Property constitutes a valuable community resource by providing
decent, safe, and sanitary housing to persons and families of low- and moderate -income who
would otherwise be unable to afford such housing. To protect and preserve this resource, it
is necessary, proper, and in the public interest for the City to administer occupancy and resale
controls consistent with the Program and applicable law by means of this Agreement;
WHEREAS, notwithstanding the foregoing, the City has provided a mechanism to
allow for the release of the resale restrictions for Below Market Rate ("BMR") properties in
the Program whose owners are unable to sell them under certain limited circumstances, at
the sole discretion and approval of the City, pursuant to the City's adopted Guidelines to the
Inclusionary Zoning Regulations Ordinance ("Guidelines"), at Section 6.5.2 ("Release of
Resale Restrictions").
NOW THEREFORE, in consideration of the substantial economic benefits received by
the Owner and the public purposes served under the Program, Owner and City agree as
follows:
AGREEMENT
1. Definitions
As used in this Agreement, the following terms have the meanings set forth below.
Other additional terms are defined as necessary throughout this Agreement.
"Adjusted Resale Price" means Base Resale Price as adjusted by the factors listed
in Section 6.2, not to exceed Affordable Unit Cost.
"Affordable Unit Cost" means a sale price that will result in a homeowner's annual
housing expenses not exceeding 35% of the maximum qualifying income level, adjusted for
household size appropriate for the unit. For purposes of this definition, "housing expenses"
means principal, interest, property taxes, property and mortgage insurance, and
homeowners' association dues. "Maximum qualifying income level" means: (i) for Moderate -
Income Households — 120% of Area Median Income; and (ii) for Low -Income Households —
80% of Area Median Income. "Household size appropriate for the unit" means one person for
a studio, two persons for a one -bedroom unit, three persons for a two -bedroom unit, four
persons for a three -bedroom unit, and five persons for a four -bedroom unit.
"Area Median Income" or "AMI" means the area median income adjusted for
household size as published annually by the California Department of Housing and
Community Development ("HOD") for the County of Alameda, pursuant to California Health
and Safety Code Section 50093 or successor provision.
BMR Res Rest Agmt / Name / Date 2 Rev November 2024
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"Base Resale Price" means the unadjusted value of the Property as determined in
Section 6.1.
"Eligible Capital Improvements" means any health and safety -related improvements
to the Property as may be approved by the City in accordance with Section 3.5.
"Eligible Household" means a household whose gross annual income does not
exceed the Low- or Moderate -Income limits of 80% and 120% AM I, respectively, and which
otherwise meets the Program criteria.
"Event of Default" is any breach by Owner of the covenants and conditions of this
Agreement as set forth in Section 11.1, or other event described herein, which gives rise to
the City's right to exercise the Option.
"Excess Sale Proceeds" means the Owner's obligation to pay to the City the
difference between the amount that Owner would have received from sale of the Property to
an Eligible Household at the Adjusted Resale Price, and the amount received from sale of
the Property to a Market Purchaser or in other circumstances as described in Section 6.3.
"Guidelines" means the City's Guidelines to the Inclusionary Zoning Regulations
Ordinance set forth in Chapter 8.68 of the City's Municipal Code, as amended from time to
time, which terms and provisions are made a part hereof and incorporated into this Agreement
as if they were expressly set forth herein.
"Market Purchaser" means a household to whom the Property is sold in the event
that Owner is unable to locate an Eligible Household, pursuant to the terms and conditions
set forth in Section 5.8.
"Option" means the City's right to purchase the Property at the Adjusted Resale Price
upon the occurrence of an Option Event, in accordance with Section 4.
"Option Event" is any event, as identified in Section 4.3, which gives rise to the City's
right to exercise the Option.
"Permitted Exceptions" means any exceptions to title, liens or other encumbrances
expressly permitted by the City to be recorded against the Property.
"Permitted Transfer"/"Permitted Transferee" shall mean an authorized conveyance
or transfer of interest in the Property as specifically provided in Section 2.3, or the person(s)
to whom the Property interest is conveyed, which shall not trigger exercise of the Option or
be otherwise considered an Option Event.
"Principal Residence" means the place where a person resides on a substantially
full-time basis during not less than ten (10) months per year.
"Resale Restrictions" means, collectively, the restrictions on sale price and transfer
of the Property as set forth in this Agreement.
"Term of the Resale Restrictions and Option" means 55 years, commencing upon
the date the unit was placed into service as an inclusionary unit, and resetting upon each sale
BMR Res Rest Agmt / Name / Date 3 Rev November 2024
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of the BMR unit; i.e., the original owner's date of signing, hereby understood by the Parties
to be [EFFECTIVE DATE OF ORIGINAL RRA FOR PROPERTY]
"Transfer" means any sale, conveyance, assignment, or transfer of any interest in the
Property, whether voluntary or involuntary.
2. Program Requirements
2.1 General Resale Restrictions. Owner hereby covenants and agrees that during
the term of this Agreement, the Property shall be sold or transferred only to: (i) Eligible
Households at a price not to exceed the Adjusted Resale Price, as described in Section 6.2;
(ii) a Permitted Transferee pursuant to Section 2.3; (iii) the City, pursuant to exercise of the
Option as described in Sections 4 and 5; or, (iv) in the event that Owner is unable to locate
an Eligible Household, to a Market Purchaser as provided in Section 5.8 and other applicable
provisions of this Agreement. Any sale or other transfer of the Property in violation of any
Resale Restriction set forth herein is prohibited and shall constitute an Event of Default and/or
an Option Event entitling City to exercise its Option to purchase the Property.
2.2 Principal Residence Requirement. Owner covenants and agrees to occupy the
Property as Owner's Principal Residence throughout the period of time that Owner owns the
Property, and that Owner shall not rent or lease the Property or portion thereof during the Term
of the Resale Restrictions and Option. Owner shall take possession of and occupy the Property
within sixty (60) days of close of escrow for the Property. Owner shall be considered to occupy
the Property as a Principal Residence if the Owner personally resides in the Property for at least
ten (10) months out of each calendar year. Notwithstanding the foregoing, Owner may exercise
any exemptions to the owner -occupancy requirement provided for in the City's then -current
Guidelines.
2.2.1 Annual Occupancy Certification. On at least an annual basis or as
otherwise determined necessary by the City, Owner shall provide written certification,
in form provided by City, that Owner occupies the Property as Owner's Principal
Residence and that Owner is not impermissibly renting or leasing the Property to
another party. Owner shall provide such documents and other evidence as City may
reasonably request to verify compliance with the requirements of this section.
2.2.2 Successor Owners. During the Term of the Resale Restrictions and
Option, successor owners of the Property shall be obligated to use the Property as
such successor's Principal Residence for the duration of the successor's ownership,
except as otherwise provided in Section 5.8 with regard to a Market Purchaser.
Abandonment of the Property by Owner or any successor shall constitute an Option
Event triggering the City's right to exercise the Option to purchase the Property.
2.3 Permitted Transfers. As provided under this section, transfers of title to the
Property, or of any estate or interest therein, shall not be considered Option Events, provided
that the transferee assumes, within 30 days following a written request by City, all of Owner's
duties and obligations under this Agreement pursuant to a written assumption agreement or
execution of an agreement substantially similar to this Agreement, in form(s) acceptable to
the City. Notwithstanding any Permitted Transfer, the Option shall remain effective with
BMR Res Rest Agmt / Name / Date 4 Rev November 2024
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respect to the Property for the duration of the Term of the Resale Restrictions and Option.
Permitted Transfers shall include:
(a) Transfer by devise or inheritance to Owner's spouse or domestic partner
following the death of Owner;
(b) Transfer by Owner to a spouse or domestic partner where the spouse
or domestic partner becomes the co-owner of the Property;
(c) Transfer of title to a spouse as part of a divorce or marriage dissolution
proceeding; and
(d) Transfer by Owner into an inter vivos trust in which the Owner is a
beneficiary; provided, however, that in every case: (i) written notice of each such
transfer shall be provided to City, and (ii) Owner shall continue to occupy the Property
as his or her principal place of residence except where the transfer occurs pursuant
to subsection (a) or (c) above, in which event the transferee shall owner -occupy the
Property.
2.3.1 Domestic Partners. For purposes of this Agreement and requirements
of the Program, "domestic partner" shall mean two unmarried people, at least eighteen
(18) years of age, who have lived together continuously for at least one year and who
are jointly responsible for basic living expenses incurred during their domestic
partnership. Domestic partners may not be persons related to each other by blood or
adoption such that their marriage would be barred in the state of California. The City
shall consider an individual to be Owner's domestic partner, exclusively for purposes
of the Program and this Agreement, upon Owner's presentation to the City of an
affidavit or other acceptable evidence of the domestic partnership. No legal rights,
obligations, or incidents of domestic partnership or marriage, as recognized under any
local, state, or federal law, are granted, established, or implied by this Agreement or
as a result of Owner's and Owner's household's participation in the Program.
2.3.2 Inheritance. In the event a Transfer occurs by devise or inheritance due
to death of the Owner, the administrator of the Owner's estate or the person inheriting
the Property shall provide written notice to the City of the Owner's death within thirty
(30) days of the date of death, and the following procedures shall apply:
(a) If the person inheriting the Property (the "Inheriting Owner") is the child
or stepchild of the deceased Owner (an "Inheriting Child"), he or she shall provide the
City with documentation that he or she is the child or stepchild of the deceased Owner
together with income information, to be verified by the City, so that the City may
determine if the Inheriting Child is an Eligible Household.
(b) If the Inheriting Child fails to provide required documentation of his or
her relationship to the Owner or financial information, he or she shall be deemed not
to qualify as an Inheriting Child and/or Eligible Household, as applicable. If the
Inheriting Child qualifies as an Eligible Household, he or she shall succeed to the
Owner's interest and obligations under this Agreement, the City Note, and the City
BMR Res Rest Agmt / Name / Date 5 Rev November 2024
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Deed of Trust, and new documents shall be executed between the Inheriting Child and
the City and recorded against the Property.
(c) If the Inheriting Child fails to qualify as an Eligible Household, he or she
shall be required to Transfer the Property to an Eligible Household at a price not
exceeding the Adjusted Resale Price, pursuant to the procedures set forth in this
Agreement and the City may exercise its Option; provided however, the Inheriting
Child may occupy the Property for up to twelve (12) months provided that the Inheriting
Child remains in compliance with the requirements of this Agreement and the Deed of
Trust.
(d) If the Inheriting Owner is not the child or stepchild of the deceased
Owner, he or she shall Transfer the Property to an Eligible Household at a price not
exceeding the Adjusted Resale Price, pursuant to the procedures set forth in this
Agreement, and the City may exercise its Option. In this event, the Inheriting Owner
shall provide the City with a Notice of Intent to Transfer within sixty (60) days of the
date of death of the Owner.
(e) Failure of an Inheriting Owner to follow the procedures and provide the
notices as required under this Section 2.3.2 shall constitute an Event of Default under
this Agreement, and the City may then exercise any of the remedies set forth in this
Agreement or available to the City under law or equity, including, without limitation,
exercise of the Option.
2.3.3 Changes to Title. Notwithstanding any other provision of Section 2.3
and subsections thereto, Owner shall obtain City's written approval prior to making
any changes to the title of the Property, including but not limited to, the addition or
deletion of the names of any person to or from title to the Property.
3. Restrictions on Financing Secured by Property
3.1 Encumbrances. Other than this Agreement and related Performance Deed of
Trust, Owner shall permit no mortgage, deed of trust or other security instrument to be
recorded against the Property, excepting the following: (i) a fixed rate conventional mortgage
with a term of up to 30 years, (ii) any California Housing Finance Agency ("CaIHFA") product
or mortgage loan insured by the Federal Housing Administration ("FHA"), (iii) a mortgage loan
guaranteed by the Department of Veterans Affairs (VA), (iv) other recordable documents such
as the City may require under the Program, (v) other loan products approved by City, and (vi)
encumbrances that are approved by the City as Permitted Exceptions. Owner hereby
covenants and agrees to use commercially reasonable efforts to ensure that any permissible
deed of trust or other agreement encumbering the property shall include provisions for notice
of any default thereunder to be delivered to City and for City's right to cure such default at
City's election. As used herein, "First Lender" shall refer to a mortgagee under a mortgage
or a beneficiary under a deed of trust that is first in priority under the recording statutes of the
State of California over all other mortgages or deeds of trust encumbering the Property, and
any insurer or governmental guarantor of such mortgage or deed of trust. Notwithstanding
any other provision of this Agreement, in no event shall the Option, any occupancy and resale
restrictions contained herein, or any other provision of this Agreement, impair the rights of the
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First Lender to cure a default under the loan terms, to foreclose on the Property, or to
otherwise protect its interests under the mortgage.
3.2 Initial Financing. Owner's aggregate purchase money financing for the
Property ("Initial Financing") shall not exceed an amount equal to one hundred percent
(100%) of the Base Resale Price calculated as provided in Section 6.1.
3.3 Junior Loans. Mortgage loans or equity lines of credit junior in lien priority to
the Performance Deed of Trust are not permitted, except when expressly approved by the
City in writing. The City shall only approve junior mortgage loans or equity lines of credit as
follows:
(a) The loan or equity line of credit does not cause the Property's loan to
value ratio (calculated by comparing the total debt secured by the Property to the
Adjusted Resale Price of the Property) to exceed 100%.
(b) The proceeds of such loan or equity line of credit are used only for
Eligible Capital Improvements; and
(c) The total outstanding balance of principal and any accrued interest on
all loans secured by the Property does not exceed the Adjusted Resale Price.
3.4 Refinancing. Any prepayment and refinance of the Initial Financing shall not
be permitted unless expressly approved by the City in writing, and the City may approve such
refinancing only if all of the following conditions are met:
(a) the refinance reduces Owner's interest rate and monthly payments of
principal and interest on the Initial Financing or shall be used to finance Eligible Capital
Improvements;
(b) the refinance does not cause the principal amount of all debt secured
by the Property to exceed the then outstanding balance (plus refinancing and closing
costs) of the Initial Financing plus the cost of any Eligible Capital Improvements that
shall be made by Owner;
(c) the refinance does not result in Owner receiving any cash from the
refinance except for Eligible Capital Improvements;
(d) the refinance does not cause the Property's loan to value ratio
(calculated by comparing the total debt secured by the Property to the Adjusted Resale
Price) to exceed 100% if the Owner does not receive any cash from the refinance, or
97% if the Owner receives cash from the refinance for Eligible Capital Improvements;
and,
(e) the total outstanding balance of principal and any accrued interest on
all loans secured by the Property does not exceed the Adjusted Resale Price.
3.5 Financing of Eligible Capital Improvements. In the City's exercise of
reasonable discretion in accordance with the Guidelines, the City will approve capital
improvements to improve adverse health and safety conditions. Only such improvements as
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are approved by the City shall be deemed Eligible Capital Improvements. In the event that
the Owner (i) refinances the Initial Financing in accordance with Section 3.4, or (ii) borrows a
junior loan or takes an equity line of credit, in accordance with Section 3.3, for purposes of
making Eligible Capital Improvements, Owner shall provide adequate documentation to City,
in a form acceptable to City in its sole and absolute discretion, that any amount of funds
received by Owner for such Eligible Capital Improvements shall be and are used exclusively
for that purpose.
3.6 Preservation of Affordability; Subordination. The City and the Owner agree
that the requirements of Section 3 and subsections hereto are necessary to ensure the
continued affordability of the Property to Owner and to minimize the risk of loss of the Property
by Owner through default and foreclosure of mortgage loans. Owner further acknowledges
that violation of the provisions of this Section 3 shall constitute a Default under this
Agreement. In no case shall this Agreement and the Performance Deed of Trust be in lower
than third lien position on the Property. Any subordination agreement to be executed by City
shall include notice and cure rights for City regarding any defaults in the mortgage to which
the City is subordinating.
3.7 For purposes of this Section 3 and subsections hereto, the Adjusted Resale
Price shall be calculated by the City pursuant to Section 6.2 of this Agreement as of the earlier
of (i) the date on which the deed of trust or mortgage securing the new mortgage is filed for
recordation in the Official Records of the County of Alameda, or (ii) the date the City receives
a Notice of Intent to Transfer pursuant to Section 5.1.
4. City's Option to Purchase Property
4.1 Grant of Option to Purchase. Owner hereby grants to the City an Option to
purchase the Property, subject only to Permitted Exceptions, at the Adjusted Resale Price,
upon the occurrence of an Option Event in accordance with the terms and conditions
contained herein.
4.2 Assignment of the Option. The City may assign the Option to another
government entity, a non-profit affordable housing provider, or a person or family that qualifies
as an Eligible Household. The City's assignment of the Option shall not extend any time limits
contained herein with respect to the exercise period of the Option or the period within which
the Property must be purchased.
4.3 Events Giving Rise to Right to Exercise Option. The City shall have the right
to exercise its Option upon the occurrence of any of the following events (each, an "Option
Event"):
(a) Receipt of a Notice of Intent to Transfer (see Section 5.1, below);
(b) Receipt of a Notice of Owner's Inability to Locate an Eligible Household
as described in Section 5.8;
(c) Any actual, attempted or pending sale, conveyance, transfer, lease or
other attempted disposition of the Property or of any estate or interest therein, except
as otherwise provided in Section 3;
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(d) Any actual, attempted or pending encumbrance of the Property,
including without limitation by way of mortgage or deed of trust, or by judgment,
mechanics, tax or other lien, except as provided in Section 3;
(e) Recordation of a notice of default and/or notice of sale pursuant to
California Civil Code Section 2924 (or successor provisions) under any deed of trust
or mortgage with a power of sale encumbering the Property;
(f)
Property;
Commencement of a judicial foreclosure proceeding regarding the
(g) Execution by Owner of any deed in lieu of foreclosure transferring
ownership of the Property, except as otherwise provided in Section 4.6.2;
(h) Commencement of a proceeding or action in bankruptcy, whether
voluntary or involuntary, pursuant to Title 11 of the United States Code or other
bankruptcy statute, or any other insolvency, reorganization, arrangement, assignment
for the benefit of creditors, receivership or trusteeship, concerning the Owner; or
(I) The occurrence of an Event of Default as described in Section 11.
4.4 Right of Reinstatement. If the Option Event is the recordation of a notice of
default, then the City shall be deemed to be Owner's successor in interest under California
Civil Code Section 2924c (or successor section) solely for purposes of reinstatement of any
mortgage on the Property that has led to the recordation of the notice of default. As Owner's
deemed successor in interest, the City shall be entitled to pay all amounts of principal,
interest, taxes, assessments, homeowners' association fees, insurance premiums, advances,
costs, attorneys' fees and expenses required to cure the default. If the City exercises the
Option, then any and all amounts paid by the City pursuant to this section shall be treated as
Adjustments to the Base Resale Price for the Property, as described in Section 6.2 below.
4.5 Priority and Effectiveness of the Option
4.5.1 Recordation. This Agreement shall be recorded in the Office of the
Recorder of the County of Alameda on or as soon as practicable after the Effective
Date. Except as otherwise expressly provided in Section 5.8 of this Agreement, the
Option shall have priority over any subsequent sale, conveyance, transfer, lease or
other disposition or encumbrance of the Property, or of any estate or interest therein,
and in the event of exercise of the Option by City, the City shall take the Property
subject only to Permitted Exceptions. The exercise of the Option by the City at any
time and from time to time shall not extinguish the Option or cause a merger of the
Option into any estate or other interest in the Property, and the Option shall continue
to exist and be effective with respect to the Property against any and all subsequent
owners.
4.5.2 Request for Notice of Default. The City shall file a Request for Notice
of Default for recordation in the Office of the Recorder of the County of Alameda
promptly upon execution of this Agreement (see Exhibit E).
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4.5.3 Subordination. The City agrees that in order to assist qualified
purchasers to secure purchase money financing for the acquisition of the Property,
the City will enter into a subordination agreement with a senior purchase money lender
to subordinate this Agreement under such terms as the City and the senior purchase
money lender shall negotiate.
4.6 Survival of Option Upon Transfer
4.6.1 In General. The City's right to exercise the Option shall survive any
transfer of the Property by Owner, except as otherwise provided in Sections 4.6.2 and
5_8 of this Agreement. Each transferee, assignee or purchaser of the Property during
the term hereof shall be required to execute an agreement substantially in the form of
this Agreement, provided that the term of any such agreement shall be for the
remainder of the term hereof as of the date of any such transfer, assignment or sale.
The Option may be exercised against the Property throughout the term hereof,
regardless of whether the Property is owned, possessed or occupied by Owner or any
successor, transferee, assignee, heir, executor, or administrator of Owner, regardless
of household income (if applicable) including a debtor -in -possession, debtor or trustee
pursuant to Title 11 of the United States Code. Notwithstanding the foregoing, the
Option shall not survive (i) the transfer of the Property to a third party purchaser
pursuant to a judicial or non -judicial foreclosure or a deed -in -lieu of foreclosure under
a power of sale contained in a mortgage or deed of trust held by a First Lender (as
defined in Section 3.1), (ii) the recording of an instrument conveying Owner's interest
in the Property to the City, or its assignee, provided the conveyance is in accordance
with the terms of this Agreement, or (iii) upon transfer of the Property to a Market
Purchaser pursuant to Section 5.8 of this Agreement.
4.6.2 HUD -Insured and CaIHFA Deeds of Trust. Notwithstanding any other
provisions of this Agreement, if Owner has acquired the Property using financing
secured by a deed of trust or mortgage insured by the Federal Housing Administration
(FHA) or the U.S. Department of Housing and Urban Development (HUD), or provided
through the California Housing Finance Agency (CaIHFA), then the Option, together
with all occupancy and resale restrictions contained herein and in the Performance
Deed of Trust, as applicable, shall automatically terminate if title to the Property is
acquired by HUD, CaIHFA, or another party, upon foreclosure of a deed of trust
insured by HUD, or upon execution of a deed in lieu of foreclosure of said deed of
trust.
5. Notice of Intent to Transfer; Exercise of Option; Consent to Transfer; Inability to
Locate an Eligible Household
5.1 Notice of Intent to Transfer. If Owner desires to sell, convey, lease, encumber
(other than Permitted Exceptions pursuant to Section 3) or otherwise transfer the Property or
any estate or interest therein (other than a Permitted Transfer pursuant to Section 2.3), Owner
shall deliver written notice to City of such intent ("Notice of Intent to Transfer") by certified
mail not less than 45 days prior to the date of such proposed sale, conveyance, transfer,
lease, encumbrance or disposition. The Notice of Intent to Transfer shall be in substantially
the form attached hereto as Exhibit B or such substitute form in use by City at such time.
Owner shall provide a Notice of Intent to Transfer to City prior to notifying real estate
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brokers or lenders of Owner's intent to transfer the Property and prior to listing of the
Property on any multiple listing service.
5.2 Notice of Exercise. Upon the occurrence of any Option Event, including receipt
of a Notice of Intent to Transfer, the City may exercise its Option by delivering, within the time
period specified in Section 5.4, notice to Owner of City's intent to exercise such Option
pursuant to the terms of this Agreement ("Notice of Exercise"). The Notice of Exercise may
be in the form attached hereto as Exhibit C, or in such other form as the City may from time
to time adopt. If the Option Event relates to the potential foreclosure of a deed of trust or
mortgage, then the City shall also deliver the Notice of Exercise to the beneficiary or
mortgagee under such mortgage, at such beneficiary's or mortgagee's address of record in
the Office of the Recorder of Alameda County, and the City shall not complete the purchase
of the Property if the default is cured within the time periods permitted by law.
5.3 Consent to Transfer. If the Option Event involves a Notice of Intent to Transfer
the Property and the City does not exercise the Option, the City shall consent to the transfer,
provided that all of the following requirements are satisfied: (i) the Owner uses bona fide good
faith efforts to sell the Property to an Eligible Household in compliance with this Section as
well as the requirements outlined in the Guidelines for below market rate unit marketing
requirements. This includes, but is not limited to, listing the Property on the multiple listing
service, keeping the Property in an orderly condition, making the Property available to show
to agents and prospective buyers, and providing prospective buyers with Eligible Household
requirements, including income qualifications and the form of the Disclosure Statement
attached hereto as Exhibit F; (ii) the prospective purchaser qualifies as an Eligible Household;
(iii) the proposed sale price of the Property does not exceed the Adjusted Resale Price; (iv)
the prospective purchaser executes a Disclosure Statement in the form attached hereto as
Exhibit F or such other form or forms as may be promulgated by the City; (v) the prospective
purchaser executes an agreement substantially similar to this Agreement in a form approved
by the City and such substitute agreement is recorded in the Official Records of Alameda
County concurrently with the close of escrow for the sale of the Property (provided, however,
that the Term of the Resale Restrictions and the Option will be for that portion of such term
remaining as of the date of close of escrow for the sale of the Property to the prospective
purchaser); and (vi) the prospective purchaser executes a Performance Deed of Trust in form
provided by City and such Performance Deed of Trust is recorded concurrently with the close
of escrow for the sale of the Property. The Performance Deed of Trust, attached hereto as
Exhibit G, will secure the performance of the resale, refinancing, and occupancy restrictions
set forth herein, the other obligations of the Property owner, and the obligation for payment
of the City's Equity Share in connection with the first sale of the Property following the
expiration of the Term of the Resale Restrictions and Option.
5.3.1 In the case of a proposed sale of the Property to an identified
prospective purchaser, the Owner shall submit to the City, together with the Notice of
Intent to Transfer, a copy of the following documents:
(a) prospective purchaser's income certification and a list of all assets
owned by the prospective purchaser, and other financial information reasonably
requested by City, in a form approved by the City;
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(b) the income certification to be provided to any lender making a loan to
the prospective purchaser; and
(c) a copy of the proposed sales contract and all documents setting forth
the terms of sale, the name of the title company and escrow information.
The City or its authorized designee may require the prospective purchaser to provide
documentation evidencing and supporting the income and other financial information
contained in the certifications.
5.3.2 Payment of Commissions. In any sale or transfer of the Property as
provided herein, Owner shall pay real estate agent commissions, if any, which shall
not exceed six percent (6%) of the actual sales price.
5.3.3 Expiration of Consent. If the prospective purchaser fails to qualify as an
Eligible Household or fails to execute and deliver any of the required documents
specified above within the time period set forth in the Consent to Transfer, then the
Consent to Transfer shall expire and the City may, at its discretion, either: (i) notify
Owner of the disqualification, thereby entitling Owner to locate another purchaser who
qualifies as Eligible Household; or, (ii) City may exercise the Option, as if no Consent
to Transfer had been delivered.
5.4 Time Periods for Notice of Exercise or Consent to Transfer. Except as provided
in Section 5.8 (Notice of Inability to Locate Eligible Household), to which the time periods set
forth in this section shall not apply, or as otherwise specified below, the City shall deliver
either a Notice of Exercise or a Consent to Transfer, as applicable, not later than thirty (30)
days after the date that it receives a Notice of Intent to Transfer or other notice of an Option
Event.
5.4.1 Computation of Time. For purposes of computing time under this
section, the City shall be deemed to have received notice of an Option Event on the
date of delivery of a Notice of Intent to Transfer, or on the date it actually receives a
notice of default, trustee's sale, summons and complaint, or other pleading, or other
writing specifically stating that an Option Event has occurred. The applicable time
period for exercise of the Option shall not commence to run, and the City shall have
no obligation to deliver a Notice of Exercise or Consent to Transfer, unless and until
the City has received notification of an Option Event in accordance with the notice
provisions in Section 5 of this Agreement.
5.4.2 Notice of Default, Trustee's Sale, Judicial Foreclosure, or Deed in Lieu
of Foreclosure. Upon occurrence of an Option Event as described in Section 4.3 (e),
(f), or (q), the City shall deliver the Notice of Exercise on or before sixty (60) days after
the date that the City receives notice of the Option Event, and the City or its assignee
shall close escrow for the purchase of the Property no later than 90 days after the date
the City receives notification of such Option Event, unless extended by mutual
agreement of Owner and the City. If title to the Property has transferred to or been
acquired by HUD or CaIHFA as provided in Section 4.6.2 of this Agreement, due to
foreclosure of a deed of trust or execution of a deed in lieu of foreclosure, the City's
Option shall terminate as of the date of such transfer.
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5.4.3 Notice of Exercise After Expiration of Consent to Transfer. If a Consent
to Transfer has expired as provided above in Section 5.3.3, the City's Notice of
Exercise, if applicable, must be delivered no later than fifteen (15) days after the
expiration of the Consent to Transfer.
5.4.4 Effect of Court Injunction or Order. If there is a stay or injunction
imposed by court order precluding the City from delivering its Consent to Transfer or
Notice of Exercise within the applicable time period, then the running of such period
shall cease until such time as the stay is lifted or the injunction is dissolved and the
City has been given written notice thereof, at which time the period for delivery of a
Consent to Transfer or Notice of Exercise shall again begin to run.
5.5 No Deemed or Implied Consent; No Waiver. If the City in its sole discretion
determines not to exercise the Option in any particular instance, or fails to deliver a Notice of
Exercise or Consent to Transfer within the time periods set forth in Section 5.4 above, such
determination or failure shall not affect City's rights to exercise the Option upon the
occurrence of any future Option Event.
5.6 Inspection of Property. After receiving a Notice of Intent to Transfer or
delivering a Notice of Exercise, the City shall be entitled to inspect the Property one or more
times prior to the close of escrow to determine the amount of any Adjustments to the Base
Resale Price. Before inspecting the Property, the City shall give Owner not less than forty-
eight (48) hours written notice of the date, time and expected duration of the inspection. The
inspection shall be conducted between the hours of 9:00 a.m. and 5:00 p.m., Monday through
Friday, excluding court holidays, unless the parties mutually agree in writing to another date
and time. Owner shall make the Property available for inspection on the date and at the time
specified in the City's request for inspection.
5.7 Exercise of Option and Escrow
5.7.1 Timing of Escrow. Promptly after delivering a Notice of Exercise, the
City shall open an escrow with a title company of City's choosing. Close of escrow
shall take place on the later of the following dates: (i) sixty (60) days after a Notice of
Exercise has been delivered; or, (ii) ten (10) days after Owner has performed all acts
and executed all documents required for close of escrow; provided, however, that if
the City exercises the Option upon the occurrence of an Option Event described in
Section 4.3 (e), (f) or (g), close of escrow shall take place no later than 90 days after
the date the City receives notification of such Option Event. Prior to the close of
escrow, the City shall deposit into escrow the Adjusted Resale Price and all escrow
fees and closing costs to be paid by City. Commissions (not to exceed 6% of the
actual sales price), costs and title insurance premiums shall be paid pursuant to the
custom and practice in the County of Alameda at the time of the opening of escrow,
or as may otherwise be provided by mutual agreement. Owner agrees to perform all
acts and execute all documents reasonably necessary to effectuate the close of
escrow and transfer of the Property to the City.
5.7.2 Removal of Exceptions to Title, Escrow Proceeds. Prior to close of
escrow, Owner shall cause the removal of all exceptions to title to the Property that
were recorded after the Effective Date, with the exception of: (i) non -delinquent taxes
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for the fiscal year in which the escrow closes, which taxes shall be prorated as
between Owner and City as of the date of close of escrow; (ii) quasi -public utility,
public alley, public street easements, sidewalks, and rights of way of record; (iii) such
other liens, encumbrances, reservations and restrictions required or authorized by this
Agreement or as may be approved in writing by City; and (iv) covenants, conditions
and restrictions (CC&Rs) recorded in connection with the development of the Property
as part of a common interest development ("Permitted Exceptions"). The purchase
price deposited into escrow by the City shall be applied first to the payoff of the
Permitted Exceptions recorded against the Property in order of lien priority, and
thereafter to the payment of Owner's share of escrow fees and closing costs, including
broker commissions. Any amounts remaining after the purchase price has been so
applied, if any, shall be paid to Owner upon the close of escrow. If the purchase price
is insufficient to satisfy all liens and encumbrances recorded against the Property, the
Owner shall deposit into escrow such additional sums as may be required to remove
such liens and encumbrances. In the event that the City agrees to proceed with close
of escrow prior to the date that Owner has caused all exceptions to title other than
Permitted Exceptions to be removed, then Owner shall indemnify, defend and hold
City harmless from any and all costs expenses or liabilities (including attorneys' fees)
incurred or suffered by City that relate to such exceptions and their removal from title
to the Property.
5.8 Notice of Inability to Locate Eligible Household. If, despite bona fide good faith
documented marketing efforts (as defined in the Guidelines at section 6.4.2), Owner is unable
to locate an Eligible Household during the marketing period and any extensions to the
marketing period granted by the City, the Owner shall provide written notice to the City of this
fact in the form shown in Exhibit H attached to this Agreement (the "Owner's Notice of Inability
to Locate Eligible Household") along with other documentation as required by City. Such
documentation shall be required to be reviewed and approved by City to demonstrate
Owner's eligibility under the policy set forth in the Guidelines allowing the release of resale
restrictions for Below Market Rate ownership homes whose owners are unable to sell them
under certain circumstances with City approval (the "Resale Restriction Release Policy").
Within fifteen (15) days of receipt of the Owner's Notice of Inability to Locate Eligible
Household and other required documentation, and upon a determination that Owner complies
with the requirements of the Resale Restriction Release Policy, the City shall provide written
notice to Owner stating either (i) that the City will exercise the Option to purchase the
Property, or (ii) that the Owner may transfer the Property to a Market Purchaser of the
Owner's choosing who is not an Eligible Household, at an unrestricted price which is at or
near fair market value (supported by a qualified appraisal), without taking into account the
resale price restrictions imposed by this Agreement, and that the Owner shall pay any Excess
Sales Proceeds to the City as set forth in Section 6.3 below.
5.8.1 Extended Time for Close of Escrow. If the City chooses to exercise its
Option in response to the Owner's Notice of Inability to Locate Eligible Household,
then the Option shall be exercised pursuant to the provisions of Section 5.7, except
that close of escrow shall take place no later than seventy-five (75) days after the date
of the City's written notification to Owner indicating City's exercise of its Option.
5.8.2 Conditions for Release and Reconveyance. If the Owner transfers the
Property to a Market Purchaser, the purchaser shall not be required to execute a
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resale agreement, and the City shall reconvey the liens of this Agreement and the
Performance Deed of Trust, provided that the Owner pays the Excess Sales Proceeds
to the City pursuant to Section 6.3 below. The Owner shall provide the City with the
following documentation associated with such a transfer:
(a) The name, address, email, and phone contact information of the
purchaser;
(b) The final sales contract and all other related documents which shall set
forth all the terms of the sale of the Property, including the Closing Disclosure. Said
documents shall include at least the following terms: (a) the sales price; and (b) the
price to be paid by the Market Purchaser for the Owner's personal property, if any, for
the services of the Owner, if any, and any credits, allowances or other consideration,
if any.
(c) A written certification, from the Owner and the Market Purchaser in the
form shown in Exhibit I, "Certification Upon Transfer of Property to Market Purchaser,"
that the sale shall be closed in accordance with the terms of the sales contract and
other documents submitted to and approved by the City. The certification shall also
provide that the Market Purchaser or any other party has not paid and will not pay to
the Owner, and the Owner has not received and will not receive from the Market
Purchaser or any other party, money or other consideration, including personal
property, in addition to what is set forth in the sales contract and documents submitted
to the City. The written certification shall also include a provision that in the event a
Transfer is made in violation of the terms of this Agreement or false or misleading
statements are made in any documents or certification submitted to the City, the City
shall have the right to pursue any remedies at law or in equity such as may be
appropriate. In any event, any costs, liabilities or obligations incurred by the Owner
and the Market Purchaser for the return of any moneys paid or received in violation of
this Agreement or for any costs and legal expenses, shall be borne by the Owner
and/or the Market Purchaser and they shall hold the City and its designee harmless
and reimburse their expenses, legal fees and costs for any action they reasonably
take in good faith in enforcing the terms of this Agreement.
(d) A copy of the qualified appraisal for the Property.
(e) Upon the close of the proposed sale, a copy of the final sales contract,
the Closing Disclosure, escrow instructions, and any other documents which the City
may reasonably request.
6. Resale Pricing Requirements and Excess Sale Proceeds
6.1 Base Resale Price. Prior to adjustment pursuant to Section 6.2, the Base
Resale Price of the Property shall be the lesser of:
(a) Indexed Value. The Indexed Value of the Property means the original
price paid by the Owner for acquisition of the Property, which the Parties agree is the
sum of sale amount written 00/100 Dollars ($000,000.00) (the "Base Price"), increased
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(but not decreased) by an amount, if any, equal to the Base Price multiplied by the
percentage increase in the Area Median Income between the Effective Date and the
date that the City receives notification of an Option Event.
(b) Fair Market Value. The Fair Market Value of the Property means the
value of the Property as determined by a qualified appraiser, certified by the State of
California, selected and paid for by Owner and approved in writing by the City.
Nothing in this section shall preclude the Owner and the City from establishing the Fair
Market Value by mutual agreement instead of by appraisal.
To compute the Base Resale Price, the City may use the "Inclusionary Zoning Base Resale
Price Worksheet" attached as Exhibit D hereto, or such other form as the City may from time
to time adopt.
6.2 Adjustments to Base Resale Price. Subject to the Affordable Unit Cost
restriction described in subsection (d) below, the Base Resale Price shall be increased or
decreased, as applicable, by the following adjustment factors:
(a) Capital Improvements. An increase for Eligible Capital Improvements
made to the Property, but only if the amount of such improvements has been
previously approved in writing by the City after Owner has submitted original written
documentation of the cost to the City for verification. The amount of the Adjustment
shall equal the original cost of any such Eligible Capital Improvements.
(b) Damage. A decrease by the amount necessary to repair damage to the
Property, if any, and to place the Property into saleable condition as reasonably
determined by the City upon City's exercise of its Option hereunder, including, without
limitation, amounts attributed to cleaning; painting; replacing worn carpeting and
draperies; making necessary structural, mechanical, electrical and plumbing repairs;
and repairing or replacing built-in appliances and fixtures. Owner covenants, at
Owner's expense, to maintain the Property in the same condition as in existence on
the date of City's Notice of Exercise, reasonable wear and tear excepted.
(c) Advances by the City. A decrease in an amount equal to the sum of all
costs advanced by the City for the payment of mortgages, taxes, assessments,
insurance premiums, homeowner's association fees and/or associated late fees,
costs, penalties, interest, attorneys' fees, pest inspections, resale inspections, fixing
violations of applicable building, plumbing, electric, fire, or other codes, and other
expenses related to the Property, which Owner has failed to pay or has permitted to
become delinquent.
(d) Adjusted Resale Price Not to Exceed Affordable Unit Cost. The Base
Resale Price, as adjusted by the factors set forth in this Section 6.2, is herein referred
to as the "Adjusted Resale Price." Notwithstanding any other provisions of this
Agreement, in no event shall the Adjusted Resale Price exceed the Affordable Unit
Cost.
6.3 Payment of Excess Sale Proceeds. If the City chooses not to exercise the
Option in the event of any transfer other than to an Eligible Transferee as provided herein,
BMR Res Rest Agmt / Name / Date 16 Rev November 2024
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the City shall be entitled to receive a portion of the proceeds from sale of the Property as
follows:
6.3.1. Upon Sale in Violation of Agreement. If Owner sells or otherwise
transfers the Property in violation of the price restrictions set forth herein, and if City
chooses not to exercise its Option, then City shall be entitled to receive from Owner
without any deduction, offset or recoupment, one hundred percent (100%) of the
difference between the actual sales price net of reasonable and customary real estate
commissions paid (such commissions not to exceed six percent (6%) of the actual
sales price), and the Adjusted Resale Price (the "Excess Sale Proceeds"). For
purposes of this section, the Adjusted Resale Price shall be calculated as of the earlier
of: (i) the date of close of escrow for the sale of the Property to the third party, or (ii)
the date the City receives Notice of Intent to Transfer pursuant to Section 5.1. This
amount of any Excess Sale Proceeds shall be a debt of Owner to City and shall be
secured by the Performance Deed of Trust.
6.3.2. Upon Foreclosure. If the Property is sold at a foreclosure sale and the
proceeds of such sale are distributed to Owner, any surplus of proceeds remaining
after payment of the senior liens and encumbrances on the Property shall be
distributed as follows: that portion of the surplus up to, but not to exceed, the net
amount Owner would have received pursuant to Section 5.7.2 had the City exercised
its Option on the date of such sale shall be distributed to Owner, and the balance of
such surplus, if any, shall be distributed to the City.
6.3.3. Upon Approved Transfer of Property to Market Purchaser. If the Owner
transfers the Property at an unrestricted price pursuant to Section 5.8 above, then City
shall be entitled to receive from Owner one hundred percent (100%) of the difference
between the gross sales proceeds received by the Owner from the new Market
Purchaser and the Adjusted Resale Price for the Property (in the amount that was
stated in the City Notice of Consent to Transfer), less the differential between the
reasonable and customary real estate commissions paid (such commissions not to
exceed six percent (6%) of the actual sales price) versus the commission that would
have been paid at the Adjusted Resale Price, and less the differential between the
applicable transfer taxes owed based on the actual sales price versus what would
have been paid based on the Adjusted Resale Price.
Example: The Adjusted Resale Price for the BMR Unit is $300,000, but the BMR
Unit is sold for $400,000 at an unrestricted price. For the unrestricted price, the
reasonable and customary real estate commission is $24,000 and the transfer tax
would be estimated at $440. For the Adjusted Resale Price, the real estate
commission would be $18,000 and the transfer tax would be $330. Thus the Owner
would owe the City Excess Sale Proceeds based upon $100,000 (the sales price
differential) less $6,000 (the real estate commission differential) less $110 (the
transfer tax differential), or $93,890.
Above calculation expressed as a formula:
(Pricei-Price2) — (Commission,-Commission2) — (Taxi-Tax2) = Excess Sale
Proceeds
BMR Res Rest Agmt / Name / Date 17 Rev November 2024
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6.3.4 Owner Acknowledgment of Obligation. The Excess Sales Proceeds
amount, if any, shall be a debt of Owner to City and shall be secured by the
Performance Deed of Trust. By entering into this Agreement, Owner acknowledges
that City shall have no obligation to reconvey the Performance Deed of Trust or this
Agreement unless and until the Excess Sale Proceeds are paid to City. City shall use
the Excess Sale Proceeds for affordable housing programs. Owner further
acknowledges that the formula used to determine the amount of the Excess Sale
Proceeds is intended to cause Owner to receive the same or less net sale proceeds
from the unrestricted sale of the Property as Owner would have received if the
Property had been sold to an Eligible Household at the Adjusted Resale Price.
6.4 Appreciation Share Payable After Expiration of Restrictions and Option.
Unless otherwise released in accordance with the requirements of these restrictions set forth
in this Agreement and the Option shall remain in effect for a period of fifty-five (55) years
commencing on the Effective Date, and resetting upon each sale of the BMR unit.
Notwithstanding the expiration of such conditions at the end of such term, upon the first
transfer of the Property occurring after the expiration of the Term of the Resale Restrictions
and Option, Owner (or Owner's successor in interest) shall pay to City an amount (the "City's
Appreciation Share") equal to twenty-five percent (25%) of the difference between (a) the
actual sales price net of reasonable and customary real estate commissions paid (such
commissions not to exceed six percent (6%) of the actual sales price), and (b) the Adjusted
Resale Price as determined for the date of the expiration of the Term of the Resale
Restrictions and Option. The City's Appreciation Share shall be paid to the City concurrently
with close of escrow for the sale of the Property, or upon Owner's receipt of the sale proceeds,
whichever shall first occur. The requirement to pay the City's Appreciation Share shall survive
the expiration of the Term of the Resale Restrictions and Option. Following completion of a
sale and payment of the City's Appreciation Share in compliance with this section, this
Agreement shall terminate, and City shall release and reconvey the Performance Deed of
Trust securing this Agreement.
7. Covenants Running with the Land
7.1 The Parties hereby declare their express intent that the covenants and
restrictions set forth in this Agreement shall be effective as of the date of execution by the
original Owner and the City, and that these covenants and restrictions shall be covenants
running with the land, which shall pass to and be binding upon all parties having any interest
in the Property throughout the Term of the Resale Restrictions and Option. Each and every
contract, deed, lease or other instrument covering, conveying or otherwise transferring the
Property or any interest therein, as the case may be, shall conclusively be held to have been
executed, delivered and accepted subject to this Agreement regardless of whether the other
party or parties to such contract have actual knowledge of this Agreement.
7.2 The Owner and the City hereby declare their further understanding and intent
that: (i) the covenants and restrictions contained in this Agreement shall be construed as
covenants running with the land pursuant to California Civil Code Section 1468 and not as
conditions which might result in forfeiture of title by Owner; (ii) the burden of the covenants
and restrictions set forth in this Agreement touch and concern the Property in that the Owner's
legal interest in the Property may be rendered less valuable thereby; and (iii) the benefit of
the covenants and restrictions set forth in this Agreement touch and concern the land by
BMR Res Rest Agmt / Name / Date 18 Rev November 2024
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enhancing and increasing the enjoyment and use of the Property by Eligible Households who
may purchase the Property, the intended beneficiaries of such covenants and restrictions.
7.3 All covenants and restrictions contained herein without regard to technical
classification or designation shall be binding upon Owner for the benefit of the City and such
covenants and restrictions shall run in favor of such parties for the entire period during which
such covenants and restrictions shall be in force and effect, without regard to whether the
City is an owner of any land or interest therein to which such covenants and restrictions relate.
8. Owner's Acknowledgment of Resale Restrictions
Owner hereby acknowledges and agrees as follows:
(a) Absent the provisions of the Program and the provisions of this Agreement, the
Property could not be made available to Eligible Households, including Owner, at an
affordable price.
(b) For valuable consideration, Owner hereby subjects the Property to certain
restrictions as provided herein; including, in part, limitations on the price for which Owner may
sell the Property and persons to whom Owner may sell the Property. The resale price
limitations and other provisions of this Agreement may restrict some benefits of owning the
Property. Owner may not realize certain economic or other benefits from ownership of the
Property that could arise from ownership of real property not otherwise subject to the
restrictions of this Agreement.
(c) Owner has read and understands all of the provisions of this Agreement.
Owner accepts and agrees to the provisions of this Agreement and understands that this
Agreement (including without limitation the effectiveness of the Resale Restrictions and the
City's Option) will remain in full force in perpetuity despite any Transfer of the Property, unless
and except as otherwise provided in this Agreement.
(d) OWNER UNDERSTANDS THAT THE DETERMINATION OF THE MAXIMUM
AFFORDABLE RESALE PRICE OF THE PROPERTY TO AN ELIGIBLE HOUSEHOLD CAN
BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER, TAKING INTO
CONSIDERATION INCREASES IN MEDIAN INCOME, MORTGAGE INTEREST RATES,
PROPERTY TAXES AND OTHER FACTORS THAT CANNOT BE ACCURATELY
PREDICTED AND THAT THE SALES PRICE PERMITTED HEREUNDER MAY NOT
INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR REAL
PROPERTY WHICH IS NOT ENCUMBERED BY THIS AGREEMENT. OWNER FURTHER
ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE SALES PRICE OF THE
PROPERTY THE PRIMARY OBJECTIVE OF THE CITY AND THIS AGREEMENT IS TO
PROVIDE HOUSING TO ELIGIBLE HOUSEHOLDS AT AFFORDABLE HOUSING COST.
THE MAXIMUM RESTRICTED RESALE PRICE WILL ALMOST CERTAINLY BE LESS
THAN OTHER SIMILAR PROPERTIES THAT HAVE NO RESTRICTIONS.
Initialed by Owner(s):
BMR Res Rest Agmt / Name / Date
19 Rev November 2024
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(e) DURING THE TERM OF THIS AGREEMENT OWNER SHALL NOT
VOLUNTARILY SELL, ENCUMBER OR OTHERWISE TRANSFER THE PROPERTY
WITHOUT EXPRESS WRITTEN APPROVAL BY THE CITY OF SAID ENCUMBRANCE,
TRANSFER OR SALE AND THE TERMS AND CONDITIONS THEREOF PERTAINING TO
PURPOSE OF ENCUMBRANCE, ELIGIBLE HOUSEHOLD(S), SALE PRICE, EXCESS
SALE PROCEEDS, OR OTHER REQUIREMENTS IN ACCORDANCE WITH THE
PROVISIONS OF THIS AGREEMENT. ANY ACTUAL OR ATTEMPTED SALE OR OTHER
TRANSFER OF THE PROPERTY IN VIOLATION OF THIS COVENANT SHALL BE
VOIDABLE BY THE CITY TO THE EXTENT PERMITTED BY LAW AND SHALL ENTITLE
THE CITY TO EXERCISE ITS OPTION TO PURCHASE THE PROPERTY.
Initialed by Owner(s):
9. Limits on Liability
In no event shall the City become liable or obligated in any manner to Owner by reason
of the assignment of this Agreement or the Option, nor shall City be in any way liable or
obligated to Owner for any failure of the City's assignee to consummate a purchase of the
Property or to comply with the terms of this Agreement or the Option, or any escrow
instructions or agreement for the purchase of the Property.
10. Insurance Proceeds and Condemnation Award.
In the event the Property is destroyed and insurance proceeds are distributed to
Owner instead of being used to rebuild the Property, or, in the event of condemnation, if the
proceeds thereof are distributed to Owner and mortgagees as their interests appear, any
surplus of proceeds remaining after payment of the senior liens and encumbrances on the
Property shall be distributed as follows: that portion of the surplus up to, but not to exceed,
the net amount Owner would have received pursuant to Section 5.7 had the City exercised
its Option on the date of the destruction or condemnation valuation date shall be distributed
to Owner; the balance of such surplus, if any, shall be distributed to the City.
11. Default and Remedies
11.1 Events of Default. The following shall constitute the occurrence of an Event of
Default hereunder, and shall entitle City to exercise the Option or to pursue any other remedy
provided herein or at law or in equity:
(a) Owner's failure to use the Property as Owner's principal residence.
(b) The sale, conveyance, or other transfer of the Property (including a
foreclosure sale) if the remaining ownership interest of the Owner in the Property is
less than fifty percent (50%), except for a Permitted Transfer as provided in Section
2.3.
BMR Res Rest Agmt / Name / Date 20 Rev November 2024
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(c) A default occurs under the terms of a deed of trust secured by the
Property and such default is not cured prior to the expiration of any applicable cure
period.
(d) Owner encumbers the Property in violation of this Agreement.
(e) Owner fails to observe or perform any other covenant, condition, or
agreement to be observed or performed by Owner pursuant to this Agreement, and
such breach remains uncured beyond the expiration of any applicable cure period.
11.2 Specific Performance. Owner acknowledges that any breach in the
performance of its obligations under this Agreement shall cause irreparable harm to the City.
Owner agrees that the City is entitled to equitable relief in the form of specific performance
upon its exercise of the Option, and that an award of damages shall not be adequate to
compensate the City for Owner's failure to perform according to the terms of this Agreement.
11.3 Other Remedies. City shall have all of the remedies provided for at law or
equity, all of which shall be cumulative.
12. Notices
Except as otherwise specified in this Agreement, all notices to be sent pursuant to this
Agreement shall be made in writing, and sent to the Parties at their respective addresses
specified below or to such other address as a Party may designate by written notice delivered
to the other Party in accordance with this Paragraph. All such notices shall be sent by:
(a) personal delivery, in which case notice shall be deemed delivered upon receipt;
(b) certified or registered mail, return receipt requested, in which case notice shall be
deemed delivered two (2) business days after deposit, postage prepaid in the United
States mail;
(c) nationally recognized overnight courier, in which case notice shall be deemed
delivered one (1) day after deposit with such courier; or
(d) facsimile transmission, in which case notice shall be deemed delivered on transmittal,
provided that a transmission report is generated reflecting the accurate transmission
thereof.
City: City of Dublin
Attn: City Clerk
100 Civic Plaza
Dublin, California 94568
Fax (925) 833-6651
Housinglnfo@dublin.ca.gov
Owner: Owner
Address
BMR Res Rest Agmt / Name / Date 21 Rev November 2024
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Dublin, CA 94568
13. General Provisions
13.1 Attorneys' Fees. If either party initiates legal proceedings to interpret or enforce
its rights under this Agreement, the prevailing party in such action shall be entitled to an award
of reasonable attorneys' fees and costs in additions to any other recovery to which it is entitled
under this Agreement.
13.2 No Joint Venture; No Third -Party Beneficiary. No joint venture or other
partnership exists or is created between the Parties by virtue of this Agreement. Except as
expressly stated herein, this Agreement does not benefit any third party.
13.3 Successors; Assignment. This Agreement shall inure to the benefit of and shall
be binding upon the Parties to this Agreement and their respective heirs, executors,
administrators, successors and assigns. City shall have the right to assign all of its rights
and obligations under this Agreement without the consent of Owner.
13.4 Entire Agreement; Amendment. This Agreement, together with the
Performance Deed of Trust, constitutes the entire agreement of the Parties with respect to
the subject matter hereof, and supersedes any and all other prior negotiations,
correspondence, understandings and agreements with respect thereto. There are no
representations, promises, agreements or other understandings between the Parties relating
to the subject matter of this Agreement that are not expressed herein. This Agreement may
be modified only by an instrument in writing executed by the Parties or their respective
successors in interest.
13.5 Survival; No Merger. All of the terms, provisions, representations, warranties
and covenants of the Parties under this Agreement shall survive the close of escrow of any
sale of the Property and shall not be merged in any deed transferring the Property.
13.6 Authority And Execution. Each Party represents and warrants that it has full
power and authority to enter into this Agreement and to undertake all of its obligations
hereunder, that each person executing this Agreement on its behalf is duly and validly
authorized to do so.
13.7 Severability. The invalidity or unenforceability of any term or provision of this
Agreement shall not impair or affect the remainder of this Agreement, and the remaining
terms and provisions hereof shall not be invalidated but shall remain in full force and effect.
13.8 Waiver; Modification. No waiver or modification of this Agreement or any
covenant, condition, or limitation herein contained shall be valid unless in writing and duly
executed by the Party to be charged therewith. No evidence of any waiver or modification
shall be offered or received in evidence in any proceeding, arbitration, or litigation between
the Parties arising out of or affecting this Agreement or the rights or obligations of any Party
hereunder, unless such waiver or modification is in writing and duly executed as aforesaid.
The provisions of this section may not be waived except as herein set forth. A waiver or
breach of any covenant, condition or provision of this Agreement shall not be deemed a
waiver of any other covenant, condition or provision hereof.
BMR Res Rest Agmt / Name / Date 22 Rev November 2024
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13.9 Construction. The section headings and captions used in this Agreement are
for convenience of reference only and shall not modify, define, limit or amplify any of the terms
or provisions hereof. This Agreement shall not be construed as if it had been prepared by
one of the Parties, but rather as if both Parties have prepared it.
13.10 Governing Law. This Agreement shall in all respects be governed by and
construed in accordance with the laws of the State of California.
13.11 Time of the Essence. Time is of the essence in this Agreement as to each
provision in which time is an element of performance.
13.12 Further Assurances. Each Party will, upon reasonable request of the other
Party, 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 fulfill the purposes of this Agreement.
13.13 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, and all which together shall constitute one and the same
instrument.
BMR Res Rest Agmt / Name / Date 23 Rev November 2024
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first written above.
ATTEST:
City Clerk
OWNER(S):
Owner
Owner
CITY:
City of Dublin, a California municipal
corporation
City Manager
SIGNATURES MUST BE NOTARIZED
BMR Res Rest Agmt / Name / Date 24 Rev November 2024
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CERTIFICATE OF ACCEPTANCE
(Pursuant to Government Code §27281)
This is to certify that the interest in real property conveyed by the Resale Restriction
Agreement and Option to Purchase dated DATE from Owner(s) as appear on title to the
City of Dublin, a California municipal corporation, is hereby accepted by the undersigned
office or agent on behalf of the City of Dublin pursuant to authority conferred by the Resolution
No. 24-87 dated April 13, 1987; and the grantee consents to recordation thereof by its duly
authorized officer.
Dated:
City Manager
Attest:
City Clerk
BMR Res Rest Agmt / Name / Date 25 Rev November 2024
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EXHIBIT A
Development Site Legal Description
The Land referred to herein below is situated in the County of Alameda, State of California,
and is described as follows:
PARCEL ONE:
PARCEL 2 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13
THROUGH 18, INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
PARCEL TWO:
PARCEL 3 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13
THROUGH 18, INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
PARCEL THREE:
PARCEL 4 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13
THROUGH 18, INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
APN: 985-0051-006 (AFFECTS: PARCEL ONE); 985-0052-024 (AFFECTS: PARCEL TWO)
and 985-0052-025 (AFFECTS: PARCEL THREE) (APN provided for informational purposes
only.)
SMRH:4858-2345-5165.3
-1-
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EXHIBIT B
FORM OF NOTICE OF INTENT TO TRANSFER
To: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: Housing Division
Date:
Re: Notice of Intent to Transfer
Pursuant to the terms of the Resale Restriction Agreement and Option to Purchase, dated Date, the undersigned
Owner(s), Owner Name(s), hereby give(s) notice of his/her/their intent to transfer the property located at Unit
Address, Dublin, California 94568 (the "Property"). Owner may be contacted at the Property or at the following
address:
Telephone:
Email:
If applicable: The proposed transfer of the Property is to the following person(s):
Name:
Address:
Telephone:
The proposed transfer is (check one):
❑ Sale
❑ Other Specify:
Next Anticipated Home Tenure: ❑ Rental ❑ Ownership ❑ Unknown
Reason for Selling Unit (Check all that apply):
J Want to own unrestricted home
❑ Home is too small ❑ Home is too large
❑ Job relocation ❑ Retirement
❑ Change in family situation
❑ Home expenses are too great
❑ Other:
❑ Want to move closer to job
Owner(s) signature(s):
Signature
Print Name
f
Signature
Print Name
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EXHIBIT C
FORM OF NOTICE OF EXERCISE (Resale Restriction Agreement)
Date:
To (Owner/Transferee):
Address:
Re: Notice of Exercise
The City of Dublin (" City") hereby gives notice that it is exercising its option to purchase the real
property located at Unit Address, Dublin, California 94568. The option has been granted to the
City pursuant to the Resale Restriction Agreement with Option to Purchase executed by and
between Owner and the City dated as of Date and recorded on Date as Instrument No.
201XXXXXXX (the City has assigned its option to purchase the real property to
)•
An escrow for the purchase will be opened with Title Company.
Dated: CITY OF DUBLIN
By:
Its: City Manager
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EXHIBIT D
INCLUSIONARY ZONING BASE RESALE PRICE WORKSHEET
Date:
Owner(s):
Address:
Purchase Price: $
Date of Purchase:
Years Owned: years
Dublin, CA 94568
CALCULATION BASED ON INCREASE IN MEDIAN INCOME***
Present Median Income: $
Family of four, County of Alameda
(at time of sale of unit)
Original Median Income: $
Family of four, County of Alameda
(at time of purchase of unit)
Amount of Increase:
Family of four, County of Alameda
(Present median income minus original median
income)
Increase in Price:
Method #1 Resale Price:
Effective Date:
Effective Date:
Based on the above, the base resale price as of this date is:
By:
Housing Staff
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EXHIBIT E
FORM OF REQUEST FOR NOTICE OF DEFAULT
Recording 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 Only)
Escrow Number:
Loan Number:
REQUEST FOR NOTICE UNDER SECTION 2924b CIVIL CODE
In accordance with Section 2924b, Civil Code, request is hereby made that a copy of
any Notice of Default and a copy of any Notice of Sale under the Deed of Trust recorded as
Instrument No. 201XXXXXXX recorded concurrent herewith in the Official Records of
Alameda County, California, and describing land therein as Address, Dublin, California
94568:
(See attached legal description)
Executed by Owner(s), as Trustor, in which Bank is named as Lender, with Trustee as
Trustee, and Beneficiary as Beneficiary, be mailed to the City of Dublin, 100 Civic Plaza,
Dublin, California 94568, Attn.: City Manager
By:
City Manager
NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE WILL BE
SENT ONLY TO THE ADDRESS CONTAINED IN THIS RECORDED REQUEST. IF YOUR
ADDRESS CHANGES, A NEW REQUEST MUST BE RECORDED.
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EXHIBIT F
FORM OF DISCLOSURE STATEMENT
UNDER THE TERMS OF THE RESALE RESTRICTION AGREEMENT AND OPTION TO
PURCHASE ("AGREEMENT") THAT YOU HAVE ENTERED WITH THE CITY OF DUBLIN
("CITY") AND WHICH WILL BE RECORDED AGAINST THE PROPERTY, THERE ARE
RESTRICTIONS ON THE OCCUPANCY AND SALE OF THE PROPERTY YOU ARE BUYING.
EXCEPT FOR A TRANSFER TO THE CITY FOLLOWING CITY'S EXERCISE OF ITS OPTION
TO PURCHASE, THIS PROPERTY MAY ONLY BE SOLD TO AN "ELIGIBLE HOUSEHOLD" AT
A PRICE NOT TO EXCEED THE ADJUSTED RESALE PRICE WHICH IS CAPPED AT AN
"AFFORDABLE UNIT COST" AS DEFINED IN THE AGREEMENT.
THIS MEANS THAT YOU MAY NOT SELL THE PROPERTY FOR MARKET VALUE TO
WHOMEVER YOU LIKE.
THESE RESTRICTIONS WILL BE IN EFFECT FOR 55 YEARS FROM ORIGINAL DATE OF
SALE. UPON EACH SALE OF THE BMR UNIT, THE 55 YEARS WILL RESET. ANY SALE OF
THE PROPERTY IN VIOLATION OF THE RESTRICTIONS SHALL BE VOIDABLE AT THE
ELECTION OF THE CITY, AND SHALL ENTITLE THE CITY TO EXERCISE ITS OPTION TO
PURCHASE THE PROPERTY.
TO DETERMINE WHO AN ELIGIBLE HOUSEHOLD IS, AND WHAT THE ADJUSTED RESALE
PRICE AND AFFORDABLE HOUSING COST ARE, YOU SHOULD CONTACT THE HOUSING
DIVISION OF THE CITY OF DUBLIN.
YOU ARE REQUIRED TO OCCUPY THE PROPERTY AS YOUR PRINCIPAL RESIDENCE
THROUGHOUT THE PERIOD OF TIME THAT YOU OWN THE PROPERTY, AS DEFINED IN
THE AGREEMENT. THIS MEANS THAT YOU MAY NOT RENT OR LEASE THE PROPERTY,
OR PORTION THEREOF, DURING THE TERM OF THE AGREEMENT, AND THAT YOU MUST
TAKE POSSESSION OF AND OCCUPY THE PROPERTY AS YOUR PRINCIPAL RESIDENCE
WITHIN SIXTY (60) DAYS OF THE CLOSE OF ESCROW FOR THE PROPERTY. THE CITY
SHALL CONDUCT A MONITORING OF THE OWNER -OCCUPANCY STATUS OF THE
PROPERTY ON AT LEAST AN ANNUAL BASIS, AND YOU ARE REQUIRED TO PROVIDE
SUCH DOCUMENTS AND OTHER EVIDENCE AS CITY MAY REQUEST TO VERIFY
COMPLIANCE WITH THIS REQUIREMENT.
YOU SHOULD READ AND UNDERSTAND THE TERMS OF THE RESALE RESTRICTION
AGREEMENT AND OPTION TO PURCHASE THAT WILL BE RECORDED AGAINST THE
PROPERTY. YOU MAY OBTAIN A COPY FROM THE CITY OF DUBLIN OR FROM THE
ESCROW COMPANY.
YOU SHOULD ALSO BE AWARE THAT A PERFORMANCE DEED OF TRUST WILL BE
RECORDED AGAINST THE PROPERTY TO ENSURE COMPLIANCE WITH THE
AGREEMENT. YOU MAY OBTAIN A COPY FROM THE CITY OF DUBLIN OR FROM THE
ESCROW COMPANY.
I HAVE READ THE FOREGOING AND I UNDERSTAND WHAT IT MEANS.
Owner Owner
SIGNATURE REQUIRED
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EXHIBIT G
Below Market Rate (BMR)
PERFORMANCE DEED OF TRUST
Attached
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Recording 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 Only)
City Clerk Department\Agreements/Contracts\0600-25
Development:
Owner:
APN:
PERFORMANCE DEED OF TRUST
(Option to Cure and Purchase Agreement)
THERE ARE RESTRICTIONS ON THE SALE OF THE PROPERTY ENCUMBERED BY
THIS DEED OF TRUST. EXCEPT FOR A TRANSFER TO THE CITY OF DUBLIN (THE
"CITY") OR CITY'S ASSIGNEE FOLLOWING CITY'S EXERCISE OF ITS OPTION TO
PURCHASE, THIS PROPERTY MAY ONLY BE SOLD TO AN "ELIGIBLE HOUSEHOLD"
AT A PRICE NOT TO EXCEED THE ADJUSTED RESALE PRICE WHICH IS CAPPED AT
AN "AFFORDABLE UNIT COST." THE RESALE RESTRICTION AGREEMENT ALSO
RESTRICTS THE EXTENT TO WHICH THIS PROPERTY MAY BE ENCUMBERED BY
JUNIOR FINANCING AND LIMITS TRUSTOR'S RIGHTS TO REFINANCE EXISTING
MORTGAGES.
This PERFORMANCE DEED OF TRUST ("Deed of Trust") is made as of Date
("Effective Date") by OWNER(s) as appears on title ("Trustor") whose address is
ADDRESS, Dublin, CA 94568 in favor of City of Dublin ("Trustee"), for the benefit of the
CITY OF DUBLIN (referred to variously as "City" or "Beneficiary") whose address is 100 Civic
Plaza, Dublin, CA 94568, as Beneficiary.
RECITALS
A. Trustor is the owner of the real property located at ADDRESS, Dublin, CA
94568 and more particularly described in the attached Exhibit A, (the "Property").
B. The Trustor's predecessor in interest developed the Property pursuant to the
City's Inclusionary Zoning Regulations, which regulations require developers of rental and
ownership housing to construct within their projects units that are affordable to very low-, low-
, and moderate -income households and which regulations require the Property to be
subjected to restrictions on resale that ensure that the Property remains affordable.
C. In connection with the Inclusionary Zoning Regulations, Beneficiary and
Trustor entered into a Resale Restriction Agreement and Option to Purchase dated as of the
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Effective Date and recorded in the Official Records of Alameda County substantially
concurrently herewith (the "Resale Restriction Agreement") (capitalized terms used without
definition herein have the meaning ascribed to such terms in the Resale Restriction
Agreement); and
D. Pursuant to the Resale Restriction Agreement, Trustor is obligated, among
other requirements, to sell the Property only to Eligible Purchasers at a price not in excess of
the Adjusted Resale Price, which is capped at the Affordable Unit Cost; and
E. The Resale Restriction Agreement also provides (among other provisions) that:
(i) Trustor is obligated to notify Beneficiary of Trustor's intent to sell the Property in order to
enable Beneficiary to exercise its option to purchase the Property at a restricted price; (ii)
Beneficiary has an option to purchase the Property if Trustor defaults under the Resale
Restriction Agreement; and (iii) there are restrictions on Trustor's ability to encumber the
Property and to refinance the existing loans secured by the Property.
AGREEMENT
NOW, THEREFORE, to secure the full and timely performance by Trustor of the
Secured Obligation, it is agreed as follows:
1. Grant in Trust. Trustor, in consideration of the promises herein recited and the trust herein
created, hereby irrevocably and unconditionally grants, transfers, conveys and assigns to
Trustee, in trust for the benefit of Beneficiary, with power of sale, all estate, right title and
interest which Trustor now has or may later acquire in and to that certain real property located
in the City of Dublin, County of Alameda, State of California, described in the attached Exhibit
A and commonly known as: ADDRESS, Dublin, CA 94568 (the "Property") together with all
of the following:
(i) all improvements now or hereafter located or constructed on the Property and
all replacements and additions thereto ("Improvements");
(ii) all easements, rights of way, appurtenances and other rights used in
connection with the Property or as a means of access thereto ("Appurtenances");
(iii) all fixtures now or hereafter attached to or used in and about the Property or
the improvements located thereon or hereafter located or constructed on the Property, and
all renewals or replacements thereof or articles in substitution therefor, whether or not the
same are, or shall be attached to the improvements in any manner ("Fixtures and
Equipment"); and
(iv) all leases, subleases, licenses and other agreements relating to use or
occupancy of the Property ("Leases") and all rents or other payments which may now or
hereafter accrue or otherwise become payable to or for the benefit of Trustor ("Rents")
(whether or not such Leases and Rents are permitted by the Resale Restriction Agreement).
All of the above -referenced Property, Improvements, Appurtenance, Fixtures and Equipment,
Leases and Rents are herein referred to collectively as the "Security".
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2. Obligations Secured. This Deed of Trust is given for the purpose of securing payment
and/or performance of the following (the "Secured Obligations"): (i) all present and future
obligations of Trustor set forth in this Deed of Trust or in the Resale Restriction Agreement
(including without limitation, Trustor's obligation to convey the Property only to Eligible
Purchasers at no more than the Adjusted Resale Price, which is capped at an Affordable Unit
Cost (as such terms are defined in the Resale Restriction Agreement); (ii) all additional
present and future obligations of Trustor, to Beneficiary under any other agreement or
instrument acknowledged by Trustor (whether existing now or in the future) which states that
it is or such obligations are, secured by this Deed of Trust; (iii) all modifications, supplements,
amendments, renewals, and extensions of any of the foregoing, whether evidenced by new
or additional documents; and (iv) reimbursement of all amounts advanced by or on behalf of
Beneficiary to protect Beneficiary's interests under this Deed of Trust.
3. Assignment of Rents, Issues, and Profits. Trustor hereby irrevocably, absolutely,
presently and unconditionally assigns to Beneficiary the rents, royalties, issues, profits,
revenue, income and proceeds of the Property. This is an absolute assignment and not an
assignment for security only. Except to the extent that the lease or rental of the Property is
prohibited by the Resale Restriction Agreement, Beneficiary hereby confers upon Trustor a
license to collect and retain such rents, royalties, issues, profits, revenue, income and
proceeds as they become due and payable prior to any Event of Default hereunder. Upon
the occurrence of any such Event of Default, Beneficiary may terminate such license without
notice to or demand upon Trustor and without regard to the adequacy of any security for the
indebtedness hereby secured, and may either in person, by agent, or by a receiver to be
appointed by a court, enter upon and take possession of the Property or any part thereof, and
sue for or otherwise collect such rents, issues, and profits, including those past due and
unpaid, and apply the same, less costs and expenses of operation and collection, including
reasonable attorneys' fees, to any indebtedness secured hereby, and in such order as
Beneficiary may determine. Beneficiary's right to the rents, royalties, issues, profits, revenue,
income and proceeds of the Property does not depend upon whether or not Beneficiary takes
possession of the Property. The entering upon and taking possession of the Property, the
collection of such rents, issues, and profits, and the application thereof as aforesaid, shall not
cure or waive any default or notice of default hereunder or invalidate any act done pursuant
to such notice. If an Event of Default occurs while Beneficiary is in possession of all or part
of the Property and/or is collecting and applying Rents as permitted under this Deed of Trust,
Beneficiary, Trustee and any receiver shall nevertheless be entitled to exercise and invoke
every right and remedy afforded any of them under this Deed of Trust and at law or in equity,
including the right to exercise the power of sale granted hereunder. Regardless of whether
or not Beneficiary, in person or by agent, takes actual possession of the Land and
Improvements, Beneficiary shall not be deemed to be a "mortgagee in possession," shall not
be responsible for performing any obligation of the lessor under any Lease, shall not be liable
in any manner for the Property, or the use, occupancy, enjoyment or operation of any part of
it , and unless due solely to the willful misconduct or gross negligence of Beneficiary, shall
not be responsible for any dangerous or defective condition of the Property or any negligence
in the management, repair or control of the Property.
4. Fixture Filing. This Deed of Trust is intended to be and constitutes a fixture filing
pursuant to the provisions of the UCC with respect to all of the Property constituting fixtures,
is being recorded as a fixture financing statement and filing under the UCC, and covers
property, goods and equipment which are or are to become fixtures related to the Land and
the Improvements. Trustor covenants and agrees that this Deed of Trust is to be filed in the
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real estate records of Alameda County and shall also operate from the date of such filing as
a fixture filing in accordance with Section 9502 and other applicable provisions of the UCC.
This Deed of Trust shall also be effective as a financing statement covering minerals or the
like (including oil and gas) and accounts subject to the UCC, as amended. Trustor shall be
deemed to be the "debtor" and Beneficiary shall be deemed to be the "secured party" for all
purposes under the UCC. The full name of Trustor and the mailing address of Trustor are set
forth in Section 10.2 of this Deed of Trust.
5. Trustor's Representations, Warranties and Covenants.
5.1 Trustor's Estate. Trustor represents and warrants that Trustor is lawfully seized
of the estate hereby conveyed and has the right to grant and convey the Security, that other
than this Deed of Trust, the Security is encumbered only by: (a) that deed of trust executed
by Trustor in connection with a loan made to Trustor by Lender (the "First Lender"), securing
a promissory note executed by Trustor in favor of the First Lender ("First Lender Note"), to
assist in the purchase of the Property (the "First Lender Deed of Trust") and (b) the Resale
Restriction Agreement. Trustor agrees to warrant and defend generally the title to the
Security against all claims and demands, subject to any declarations, easements or
restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring
the City's interest in the Security. (As used in this Deed of Trust, the term "First Lender" shall
include all successors and assigns of the First Lender.)
5.2 Repayment of Sums Owed under Resale Restriction Agreement. Trustor will
promptly pay to the City all sums due under the Resale Restriction Agreement.
5.3 Resale Restriction Agreement. Trustor will observe and perform all of the
covenants and agreements of the Resale Restriction Agreement.
5.4 First Lender Loan. Trustor will observe and perform all of the covenants and
agreements of the First Lender Note, First Lender Deed of Trust, and related First Lender
loan documents.
5.5 Charges; Liens. Trustor will pay prior to delinquency, all taxes, assessments
and other charges, fines and impositions affecting the Security directly to the payee thereof.
Upon request by the City, Trustor will promptly furnish to the City all notices of such amounts
due. Trustor shall pay when due each obligation secured by or reducible to a lien, charge or
encumbrance which now does or later may encumber or appear to encumber all or part of
the Property or any interest in it, whether or not such lien, charge or encumbrance is or would
be senior or subordinate to this Deed of Trust. Trustor shall not be required to pay any tax,
levy, charge or assessment so long as its validity is being actively contested in good faith and
by appropriate actions and/or proceedings which will operate to prevent the enforcement of
the lien or forfeiture of the Security or any part thereof.
5.6 Hazard Insurance.
(a) Trustor will keep the Security insured by a standard all risk property insurance
policy equal to the replacement value of the Security (adjusted every five (5) years by
appraisal, if requested by the City). If the Security is located in a flood plain, Trustor shall
also obtain flood insurance. In no event shall the amount of insurance be less than the
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amount necessary to prevent Trustor from becoming a co-insurer under the terms of the
policy.
The insurance carrier providing this insurance shall be licensed to do business in the
State of California and be chosen by Trustor subject to approval by the City.
All insurance policies and renewals thereof will be in a form acceptable to the City,
and will include a standard mortgagee clause with standard lender's endorsement in favor of
the holder of the First Lender Note and the City as their interests may appear and in a form
acceptable to the City. The City shall have the right to hold, or cause its designated agent to
hold, the policies and renewals thereof, and Trustor shall promptly furnish to the City, or its
designated agent, the original insurance policies or certificates of insurance, all renewal
notices and all receipts of paid premiums. In the event of loss, Trustor will give prompt notice
to the insurance carrier and the City or its designated agent. The City, or its designated agent,
may make proof of loss if not made promptly by Trustor. The City shall receive thirty (30)
days advance notice of cancellation of any insurance policies required under this section.
Unless otherwise permitted by the City in writing, insurance proceeds, subject to the
rights of the First Lender, will be applied to restoration or repair of the Security damaged. If
permitted by City, and subject to the rights of the First Lender, the insurance proceeds shall
be used to repay any amounts due under Section 14 of the Resale Restriction Agreement,
with the excess, if any, paid to Trustor. If the Security is abandoned by Trustor, or if Trustor
fails to respond to the City, or its designated agent, within thirty (30) days from the date notice
is mailed by either of them to Trustor that the insurance carrier offers to settle a claim for
insurance benefits, the City, or its designated agent, is authorized to collect and apply the
insurance proceeds at the City's option either to restoration or repair of the Security or to pay
amounts due under the Resale Restriction Agreement.
If the Security is acquired by the City, all right, title and interest of Trustor in and to any
insurance policy and in and to the proceeds thereof resulting from damage to the Security
prior to the sale or acquisition will pass to the City to the extent of the sums secured by this
Deed of Trust immediate prior to such sale or acquisition, subject to the rights of the First
Lender.
(b) During the course of any rehabilitation of the improvements located on the
Property, Trustor shall hire only licensed contractors who maintain the following forms of
insurance:
(i) Liability Insurance. Comprehensive general liability insurance against
liability for bodily injury to or death of any person or property damage arising out of an
occurrence on or about the Property. The limits of such insurance shall be not less
than One Million Dollars ($1,000,000) combined single limit for bodily injury and
property damage.
(ii) Worker's Compensation Insurance. Worker's compensation insurance
covering all persons employed in connection with any work on the Property.
5.7 Preservation and Maintenance of Security. Trustor will keep the Security in
good repair and in a neat, clean, and orderly condition and will not commit waste or permit
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impairment or deterioration of the Security. If there arises a condition in contravention of this
Section, and if the Trustor has not cured such condition within thirty (30) days after receiving
a City notice of such a condition, then in addition to any other rights available to the City, the
City shall have the right (but not the obligation) to perform all acts necessary to cure such
condition, and to establish or enforce a lien or other encumbrance against the Security to
recover its cost of curing.
5.8 Protection of the City's Security. If Trustor fails to perform the covenants and
agreements contained in this Deed of Trust or if any action or proceeding is commenced
which materially affects the City's interest in the Security, including, but not limited to, default
under the First Lender Deed of Trust, eminent domain, insolvency, code enforcement, or
arrangements or proceedings involving a bankrupt or decedent, then the City, at the City's
option, without releasing Trustor from any obligation hereunder, may make such
appearances, disburse such sums and take such action as it determines necessary to protect
the City's interest, including but not limited to, disbursement of reasonable attorneys' fees
and entry upon the Security to make repairs. Any amounts disbursed by the City pursuant to
this paragraph, with interest thereon, will become an indebtedness of Trustor secured by this
Deed of Trust. Unless Trustor and City agree to other terms of payment, such amount will
be payable upon notice from the City to Trustor requesting payment thereof, and will bear
interest from the date of disbursement at the lesser of (i) ten percent (10%); or (ii) the highest
rate permissible under applicable law. Nothing contained in this paragraph will require the
City to incur any expense or take any action hereunder.
5.9 Inspection. The City may make or cause to be made reasonable entries upon
and inspections of the Security; provided that the City will give Trustor reasonable notice of
inspection.
5.10 Hazardous Substances. Trustor shall not cause or permit the presence, use,
disposal, storage, or release of any Hazardous Substances in, on, under, about, or from the
Property. Trustor shall not do, nor allow anyone else to do, anything affecting the Property
that is in violation of any Environmental Law. The preceding two sentences shall not apply
to the presence, use, or storage on the Property of small quantities of Hazardous Substances
that are generally recognized to be appropriate to normal residential uses and to maintenance
of the Property when used and disposed of in accordance with Environmental Law.
"Hazardous Substances" means any substance defined as toxic or hazardous
substances or hazardous waste or regulated under any Environmental Law, and the following
substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic
pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde,
and radioactive materials.
"Environmental Law" means all federal, state or local statutes, ordinances, regulations,
orders, decrees and judgments that relate to health, safety or environmental protection
including without limitation the regulation of the use, disposal, manufacture, or release of
Hazardous Substances.
Trustor shall promptly give City written notice of any investigation, claim, demand,
lawsuit or other action by any governmental or regulatory agency or private party involving
the Property and any Hazardous Substance or Environmental Law of which Trustor has actual
knowledge. If Trustor learns, or is notified by any governmental or regulatory authority, that
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any removal or other remediation of any Hazardous Substance affecting the Property is
necessary, Trustor shall promptly take all necessary remedial actions in accordance with
Environmental Law.
6. Nonliability for Negligence, Loss, or Damage; No Joint Venture. Trustor
acknowledges, understands and agrees that the relationship between Trustor and the City is
solely that of a borrower and lender, and that the City does not undertake or assume any
responsibility for or duty to Trustor to select, review, inspect, supervise, pass judgment on, or
inform Trustor of the quality, adequacy or suitability of the Security or any other matter. The
City owes no duty of care to protect Trustor against negligent, faulty, inadequate or defective
building or construction or any condition of the Security and Trustor agrees that neither
Trustor, or Trustor's heirs, successors or assigns shall ever claim, have or assert any right or
action against the City for any loss, damage or other matter arising out of or resulting from
any condition of the Security and will hold City harmless from any liability, loss or damage for
these things. Nothing contained herein or in Note or the Resale Restriction Agreement shall
be deemed to create or construed to create a partnership, joint venture or any relationship
other than that of a borrower and lender.
7. Indemnity. Trustor agrees to defend, indemnify, and hold the City of Dublin and its
elected and appointed officials, officers, employees, and agents ("Indemnitees") harmless
from and against all losses, damages, liabilities, claims, actions, judgments, costs, and
reasonable attorneys fees that the lndemnitees may incur as a direct or indirect consequence
of:
(i) Trustor's failure to perform any obligations as and when required by the
Resale Restriction Agreement and this Deed of Trust; or
(ii) the failure at any time of any of Trustor's representations or warranties
to be true and correct.
8. Acceleration; Remedies. Upon Trustor's breach of any covenant or agreement of
Trustor in Resale Restriction Agreement or this Deed of Trust, including, but not limited to,
the covenants to pay, when due, any sums secured by this Deed of Trust, the City, prior to
acceleration, will mail by express delivery with delivery receipt, notice to Trustor specifying;
(1) the breach; (2) the action required to cure such breach; (3) a date, not less than thirty (30)
days from the date the notice is received by Trustor as shown on the return receipt, by which
such breach is to be cured; and (4) if the breach is curable, that failure to cure such breach
on or before the date specified in the notice may result in acceleration of the sums secured
by this Deed of Trust and sale of the Security. The notice will also inform Trustor of Trustor's
right to reinstate after acceleration and the right to bring a court action to assert the
nonexistence of default or any other defense of Trustor to acceleration and sale. If the breach
is not cured on or before the date specified in the notice, the City, at the City's option, may:
(a) declare all of the sums secured by this Deed of Trust to be immediately due and
payable without further demand and may invoke the power of sale and any other remedies
permitted by California law;
(b) either in person or by agent, with or without bringing any action or proceeding, or
by a receiver appointed by a court, and without regard to the adequacy of its security, enter
upon the Security and take possession thereof (or any part thereof) and of any of the Security,
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in its own name or in the name of Trustee, and do any acts which it deems necessary or
desirable to preserve the value or marketability of the Property, or part thereof or interest
therein, increase the income therefrom or protect the security thereof. The entering upon and
taking possession of the Security shall not cure or waive any breach hereunder or invalidate
any act done in response to such breach and, notwithstanding the continuance in possession
of the Security, the City shall be entitled to exercise every right provided for in this Deed of
Trust, or by law upon occurrence of any uncured breach, including the right to exercise the
power of sale;
(c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a
receiver, or specifically enforce any of the covenants hereof;
(d) deliver to Trustee a written declaration of default and demand for sale, pursuant to
the provisions for notice of sale found at California Civil Code Sections 2924 et seq., as
amended from time to time; or
(e) exercise all other rights and remedies provided herein, in the instruments by which
the Trustor acquires title to any Security, or in any other document or agreement now or
hereafter evidencing, creating or securing all or any portion of the obligations secured hereby,
or provided by law.
The City shall be entitled to collect all reasonable costs and expenses incurred in
pursuing the remedies provided in this paragraph, including, but not limited to, reasonable
attorneys' fees.
9. Trustor's Right to Reinstate. Notwithstanding the City's acceleration of the sums
secured by this Deed of Trust, Trustor will have the right to have any proceedings begun by
the City to enforce this Deed of Trust discontinued at any time prior to five (5) days before
sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any
time prior to entry of a judgment enforcing this Deed of Trust if: (a) Trustor pays City all sums
which would be then due under this Deed of Trust if there were no acceleration under this
Deed of Trust or the Resale Restriction Agreement; (b) Trustor cures all breaches of any
other covenants or agreements of Trustor contained in the Resale Restriction Agreement or
this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by City and Trustee in
enforcing the covenants and agreements of Trustor contained in the Resale Restriction
Agreement or this Deed of Trust, and in enforcing the City's and Trustee's remedies,
including, but not limited to, reasonable attorney's fees; and (d) Trustor takes such action as
City may reasonably require to assure that the lien of this Deed of Trust, City's interest in the
Security and Trustor's obligation to pay the sums secured by this Deed of Trust shall continue
unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations
secured hereby will remain in full force and effect as if no acceleration had occurred.
10. Deleted.
11. Reconveyance. Upon the expiration of the term of the Resale Restriction Agreement
if the Trustor owns and occupies the Property and is not in violation of any provisions of this
Deed of Trust or the Resale Restriction Agreement, the City will request Trustee to reconvey
the Security and will surrender this Deed of Trust and the Resale Restriction Agreement to
Trustee. Trustee will reconvey the Security without warranty and without charge to the person
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or persons legally entitled thereto. Such person or persons will pay all costs of recordation,
if any.
12. Substitute Trustee. The City, at the City's option, may from time to time remove
Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor
trustee will succeed to all the title, power and duties conferred upon the Trustee herein and
by applicable law.
13. Superiority of First Lender Documents. Notwithstanding any provision herein, this
Deed of Trust shall not diminish or affect the rights of the First Lender under the First Lender
Deed of Trust or any subsequent First Lender deeds of trust hereafter recorded against the
Security in compliance with the requirements of Section 3 of the Resale Restriction
Agreement.
Notwithstanding any other provision hereof, the provisions of this Deed of Trust shall
be subordinate to the lien of the First Lender Deed of Trust and shall not impair the rights of
the First Lender, or such lender's assignee or successor in interest, to cure a default under
the loan terms, to exercise its remedies under the First Lender Deed of Trust in the event of
default under the First Lender Deed of Trust by the Trustor, or to protect its interests under
the First Lender Deed of Trust. Such remedies under the First Lender Deed of Trust include
the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After
such foreclosure or acceptance of a deed in lieu of foreclosure, this Deed of Trust shall be
forever terminated and shall have no further effect as to the Property or any transferee
thereafter; provided, however, if the holder of such First Lender Deed of Trust acquired title
to the Property pursuant to a deed or assignment in lieu of foreclosure, this Deed of Trust
shall automatically terminate upon such acquisition of title, provided that (i) the City has been
given written notice of default under such First Lender Deed of Trust with a sixty (60)-day
cure period and (ii) the City shall not have cured or commenced to cure the default within
such sixty (60)-day period or commenced to cure and given its firm commitment to complete
the cure in form and substance acceptable to the First Lender.
14. Request for Notice. City requests that copies of the notice of default and notice of sale
be sent to City at the address set forth in Section 15.5.
15. Miscellaneous.
15.1 Forbearance by the City Not a Waiver. Any forbearance by the City in
exercising any right or remedy will not be a waiver of the exercise of any such right or remedy.
The procurement of insurance or the payment of taxes or other liens or charges by the City
will not be a waiver of the City's right to require satisfaction of any obligations secured by this
Deed of Trust.
15.2 Remedies Cumulative. All remedies provided in this Deed of Trust are distinct
and cumulative to any other right or remedy under this Deed of Trust or any other document,
or afforded by law or equity, and may be exercised concurrently, independently or
successively.
15.3 Successors and Assigns Bound. The covenants and agreements herein
contained shall bind, and the rights hereunder shall inure to, the respective successors and
assigns of the City and Trustor subject to the provisions of this Deed of Trust.
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15.4 Joint and Several Liability. If this Deed of Trust is executed by more than one
person as Trustor, the obligations of each shall be joint and several.
15.5 Notices. Except for any notice required under applicable law to be given in
another manner, (a) any notice to Trustor provided for in this Deed of Trust will be given by
certified mail, return receipt requested, express delivery with delivery receipt or personal
delivery with delivery receipt, addressed to Trustor at the address shown in the first paragraph
of this Deed of Trust or such other address as Trustor may designate by notice to the City as
provided herein, and (b) any notice to the City will be given by certified mail, return receipt
requested, express delivery with delivery receipt or personal delivery with delivery receipt, to
the City of Dublin, 100 Civic Plaza, Dublin, CA 94568 Attn: City Manager, or to such other
address as the City may designate by notice to Trustor as provided above. Notice shall be
effective as of the date received by City as shown on the return receipt.
15.6 Governing Law. This Deed of Trust shall be governed by the laws of the State
of California.
15.7 Severability. In the event that any provision or clause of this Deed of Trust or
the Resale Restriction Agreement conflicts with applicable law, such conflict will not affect
other provisions of this Deed of Trust or the Resale Restriction Agreement which can be given
effect without the conflicting provision, and to this end the provisions of the Deed of Trust and
the Resale Restriction Agreement are declared to be severable.
15.8 Captions. The captions and headings in this Deed of Trust are for convenience
only and are not to be used to interpret or define the provisions hereof.
15.9 Nondiscrimination. Trustor covenants by and for itself and its successors and
assigns that there shall be no discrimination against or segregation of a person or of a group
of persons on account of race, color, religion, creed, age, disability, sex, sexual orientation,
marital status, ancestry or national origin in the sale, transfer, use, occupancy, tenure or
enjoyment of the Property, nor shall Trustor or any person claiming under or through Trustor
establish or permit any such practice or practices of discrimination or segregation with
reference to the use, occupancy, or transfer of the Property. The foregoing covenant shall
run with the land.
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the date first
written above.
Owner
Owner
SIGNATURES MUST BE NOTARIZED
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EXHIBIT A
Development Site Legal Description
The Land referred to herein below is situated in the County of Alameda, State of California,
and is described as follows:
PARCEL ONE:
PARCEL 2 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13
THROUGH 18, INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
PARCEL TWO:
PARCEL 3 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13
THROUGH 18, INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
PARCEL THREE:
PARCEL 4 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13
THROUGH 18, INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
APN: 985-0051-006 (AFFECTS: PARCEL ONE); 985-0052-024 (AFFECTS: PARCEL TWO)
and 985-0052-025 (AFFECTS: PARCEL THREE) (APN provided for informational purposes
only.)
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EXHIBIT H
OWNER'S NOTICE OF INABILITY TO LOCATE ELIGIBLE HOUSEHOLD
To: City of Dublin ("City")
From: ("Owner")
BMR Unit Address: ("BMR Unit")
The Owner hereby certifies to the City:
That he/she has made bona fide good faith marketing efforts as defined in Section 6.4.2 of the City of
Dublin Guidelines to the Inclusionary Zoning Regulations Ordinance ("Guidelines") to locate an Eligible
Household for purchase of the BMR Unit at the Base Resale Price, or Adjusted Resale Price, as such
terms are defined in the "Resale Restriction Agreement and Option to Purchase," or the "Loan,
Occupancy, Refinancing and Resale Restriction Agreement with Option to Purchase" entered into
between the City and Owner as applicable;
That he/she is unable to locate an Eligible Household to purchase the BMR Unit;
That at least one of the following conditions applies: Proven Hardship and/or Excessive Time on the
Market; Check all that apply:
Proven Hardship: The BMR Unit Owner has made a good faith effort (BMR Unit Owner has
complied with ALL recommended marketing provisions as set forth in Section 6.4.2 of the Guidelines) to
sell the BMR Unit for six (6) or more months and has a specific need to sell the home due to financial or
personal hardship.
Eligible hardships include:
A change in annual household income that has resulted in housing costs (mortgage payment,
homeowners' association dues, property taxes, and property insurance) exceeding 50% of
monthly income;
Relocation of employment to a work site that is 60 miles or more from the City of Dublin; or
The maximum restricted resale price, as provided by City Staff in the current Consent to
Transfer letter is below or within 10 percent of that of recent (within 3 months) sales prices of
comparable nearby market homes as evidenced by documentation of these comparable
sales (list prices are not acceptable).
Excessive Time on Market: The BMR Unit Owner has made a good faith effort (BMR Unit
Owner has complied with ALL recommended marketing provisions as set forth in Section 6.4.2 of the
Guidelines) to sell the BMR unit for nine (9) or more months; and
That he/she has provided documentation to the City indicating compliance with the good faith marketing
efforts and documentation of either Proven Hardship or Excessive Time on Market with this Notice.
I/We certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing is true and correct.
Signed by Owner(s):-Date:
%,
s
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EXHIBIT I
CERTIFICATION UPON TRANSFER OF PROPERTY TO MARKET PURCHASER
This certification is entered into by and between ("Seller") of the
Property located at in Dublin, California ("Property"), and
("Buyer") of the Property (together, the "Parties"). This Certification is
required to be entered into by the Parties with respect to that certain Resale Restriction
Agreement with Option to Purchase ("RRA") entered into by and between the City of Dublin
("City") and Seller on (date) and recorded on (date) in the Alameda
County records as Instrument Number
The Parties hereby certify the following:
1) That the sale of the Property shall be closed in accordance with the terms of the sales
contract and other documents submitted and approved by the City;
2) That neither the Buyer nor any other party has paid, and will not pay, to the Seller, and
the Seller has not received and will not receive from the Buyer or any other party, money
or other consideration, including personal property, in addition to what is set forth in the
sales contract and documents submitted to the City;
3) That in the event a Transfer is made in violation of the terms of the RRA or false or
misleading statements are made in any documents or certification submitted to the City,
the City shall have the right to pursue any remedies at law or in equity such as may be
appropriate;
4) That in any event, any costs, liabilities or obligations incurred by the Seller and the Owner
for the return of any moneys paid or received in violation of the RRA or for any costs and
legal expenses, shall be borne by the Seller and/or the Buyer and both Parties shall hold
the City and its designee harmless and reimburse their expenses, legal fees and costs for
any action they reasonably take in good faith in enforcing the terms of the RRA.
The Parties certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing is true and correct.
SELLER(S):
BUYER(S):
_ OF
(Print name)
Date Date
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EXHIBIT D
Legal Description of Dedication Parcel
[Attached]
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GLEASON DRIVE
Attachment 2
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EXHIBIT D
DONATION PARCEL
CITY OF DUBLIN, ALAMEDA COUNTY, CALIFORNIA
1:011r
RUGGERI-JENSEN-AZAR
ENGINEERS • PLANNERS • SURVEYORS
4690 CHABOT DRIVE, SUITE 200 PLEASANTON, CA 94588
PHONE: (925) 227-9100 FAX: (925) 227-9300
DATE: MAY 9, 2024 JOB NO. 171026 SHEET 1 OF 70
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EXHIBIT E
Offer of
Dedication
[Attached]
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RECORDING REQUESTED BY:
City of Dublin
No fee for recording pursuant to
Government Code Section 27383
WHEN RECORDED MAIL TO:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
THIS SPACE FOR RECORDER'S UE ONLY
R&T Code 11922 — Government Agency Acquiring Title
IRREVOCABLE OFFER OF
DEDICATION (FOR AFFORDABLE HOUSING PURPOSES)
For valuable consideration, the receipt of which is hereby acknowledged, Landsea Homes of
California LLC, a Delaware limited liability company (the "Grantor"), being the present title
owner(s) of record of the herein described parcel of land, does hereby make an irrevocable offer
of dedication in fee title to the City of Dublin, a California municipal corporation ("City"), for
public purposes, including, but not limited to, the development of affordable housing, that
portion of the real property situated in the City of Dublin, County of Alameda, State of
California, Assessor's Parcel No. as described in Exhibit A and
depicted in Exhibit A-1, attached hereto and incorporated herein (the "Property").
The City and its successors or assigns shall incur no liability with respect to this offer of
dedication, and shall not assume any responsibility for the Property or any improvements
thereon, until this offer has been accepted by appropriate action of the Dublin City Council, or
the governing body of its successor or assign. The City may freely assign the right to accept this
offer of dedication to a public or nonprofit entity.
This Irrevocable Offer of Dedication shall inure to the benefit of and be binding upon the
Grantor and City and their respective heirs, successors and assigns.
IN WITNESS WHEREOF, the Grantor has properly executed this Irrevocable Offer of
Dedication as of day of , 2025.
Landsea Homes of California LLC,
a Delaware limited liability company
By:
Name:
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Title:
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}
COUNTY OF ALAMEDA} s.S.
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.
Signature
Notary Seal:
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EXHIBIT A
Legal Description
To be added once finalized
-3-
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EXHIBIT F
ADU Regulatory Agreement
[Attached]
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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: Dublin Centre
Owner:
APN:
SECONDARY UNIT REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
Owner: Name
Property Address:
Address, Lot #
Dublin, CA 94568
Name of Development: Dublin Centre
This Secondary Unit Regulatory Agreement and Declaration of Restrictive
Covenants (this "Agreement") is entered into effective as of Date ("Effective Date") by
and between the City of Dublin, a public body, corporate and politic ("City") and Name
(the "Owner"). City and Owner are hereinafter collectively referred to as the "Parties."
Recitals
A. Owner is the owner of certain real property that contains a secondary
dwelling unit, which is located in the City of Dublin, County of Alameda, State of California
and more particularly described in Exhibit A attached hereto and incorporated herein by
reference (the "Property"). The Property is located within a residential development
project area (the "Project") that was subject to the City's Inclusionary Zoning Regulations
(Chapter 8.68 of the Dublin Municipal Code), which requires that developments consisting
of 20 or more residential units must include a specified percentage of units that are subject
to affordability restrictions set forth in a binding agreement recorded against the property.
B. The developer of the Project chose to satisfy its obligations through, among
other things, the construction of secondary units on some of the residential lots in the
Project, including on the Property, and requiring the purchasers to enter into regulatory
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agreements restricting the rents charged 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:
X Moderate -income: 80% to 120% of Area Median Income.
"Area Median Income" or "AMI" means the area median income for Alameda
County, California, adjusted for household size, published periodically by the California
Department of Housing and Community Development ("HOD") in Section 6932 of Title 25
of the California Code of Regulations ("Regulations") or successor provision published.
"Eligible Household" means a household whose gross income does not exceed
the Applicable Income Level and that is otherwise eligible to rent a Restricted Unit.
"Qualifying Rent" means a monthly rent which does not exceed one -twelfth of
thirty percent (30%) of the Applicable Income Level adjusted for household size, less a
utility allowance as specified by the Housing Authority of Alameda County.
"Restricted Unit" means the secondary dwelling unit on the Property that is
depicted in Exhibit B and that is reserved for occupancy at a Qualifying Rent in
accordance with and as set forth in Section 2.
2. Use and Affordability Restrictions. Owner represents and warrants that it has not
entered into any agreement that would restrict or compromise its ability to comply with
the occupancy and affordability restrictions set forth in this Agreement, and Owner
covenants that it shall not enter into any agreement that is inconsistent with such
restrictions without the express written consent of City.
2.1 Affordability Requirements. The Restricted Unit, if it is rented, shall be
rented at not more than Qualifying Rent and occupied by Eligible Households. Owner
shall ensure that language is contained in all leases and contracts with tenants executed
by Owner that prohibits subleasing of the Restricted Unit.
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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. The Annual
Report may be satisfied by completing an annual survey sent by City to Owner with
respect to the Secondary Unit. 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
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enter and inspect the Property during reasonable business hours in order to monitor
compliance with this Agreement upon 24 hours advance notice of such visit to Owner.
4. Term of Agreement.
4.1 Term of Restrictions. This Agreement shall remain in effect for 55 years
from the original owner's date of signing, hereby understood by the Parties to be DATE.
4.2 Effectiveness Succeeds Conveyance of Property. This Agreement shall
remain effective and fully binding for the full term hereof regardless of any sale,
assignment, transfer, or conveyance of the Property, unless this Agreement is terminated
earlier by City in a recorded writing.
4.3 Reconveyance. Upon the termination of this Agreement, the Parties agree
to execute and record appropriate instruments to release and discharge the terms of this
Agreement; provided, however, the execution and recordation of such instruments shall
not be necessary or a prerequisite to the termination of this Agreement in accordance
with its terms.
5. Binding Upon Successors; Covenants to Run with the Land. Owner hereby
subjects its interest in the Property to the covenants and restrictions set forth in this
Agreement. The City and Owner hereby declare their express intent that the covenants
and restrictions set forth herein shall be deemed covenants running with the land and
shall be binding upon and inure to the benefit of the heirs, administrators, executors,
successors in interest, transferees, and assigns of Owner and City, regardless of any
sale, assignment, conveyance or transfer of the Property or any part thereof or interest
therein. Each reference in this Agreement to a specifically named party shall be deemed
to mean a reference to the successor of each such Party. Any successor -in -interest to
Owner, including without limitation any purchaser, transferee or lessee of the Property
(other than the tenants of the individual dwelling units within the Property) shall be subject
to all of the duties and obligations imposed hereby for the full term of this Agreement.
Each and every contract, deed, ground lease or other instrument affecting or conveying
the Property or any part thereof, shall conclusively be held to have been executed,
delivered and accepted subject to the covenants, restrictions, duties and obligations set
forth herein, regardless of whether such covenants, restrictions, duties and obligations
are set forth in such contract, deed, ground lease or other instrument. If any such
contract, deed, ground lease or other instrument has been executed prior to the date
hereof, Owner hereby covenants to obtain and deliver to City an instrument in recordable
form signed by the parties to such contract, deed, ground lease or other instrument
pursuant to which such parties acknowledge and accept this Agreement and agree to be
bound hereby.
Owner agrees for itself and for its successors that in the event that a court of
competent jurisdiction determines that the covenants herein do not run with the land, such
covenants shall be enforced as equitable servitudes against the Property in favor of City.
6. Property Management; Repair and Maintenance; Marketing.
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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 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.
6.3 Restrictions on Transfer. Upon the conveyance, sale or lease (except as to
individual dwelling units) of the Property, the purchaser or transferee shall submit an
Annual Report to the City.
7. Recordation; No Subordination. This Agreement shall be recorded in the Official
Records of Alameda County. Owner hereby represents, warrants and covenants that
with the exception of easements and restrictions of record, absent the written consent of
City, this Agreement shall not be subordinated in priority to any lien (other than those
pertaining to taxes or assessments), encumbrance, or other interest in the Property. If at
the time this Agreement is recorded, any interest, lien, or encumbrance has been
recorded against the Property in position superior to this Agreement, upon the request of
City, Owner hereby covenants and agrees to promptly undertake all action necessary to
clear such matter from title or to subordinate such interest to this Agreement consistent
with the intent of and in accordance with this Section, and to provide such evidence
thereof as City may reasonably request. Subordination of this Agreement shall result in
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. Owner shall be permitted to make or permit the
occurrence of any conveyance, sale or lease of the Property without the prior written
consent of the City 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
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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 commercially reasonable 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 (or transferee pursuant to a deed -in -lieu of foreclosure) 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 (or deed -in -lieu of foreclosure). 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. As used herein, "First Lender" shall refer to a
mortgagee under a mortgage or a beneficiary under a deed of trust that is first in priority
under the recording statutes of the State of California over all other mortgages or deeds
of trust encumbering the Property, and any insurer or governmental guarantor of such
mortgage or deed of trust. Notwithstanding any other provision of this Agreement, in no
event shall the use and affordability restrictions contained herein, or any other provision
of this Agreement, impair the rights of the First Lender to cure a default under the loan
terms, to foreclose on the Property, or to otherwise protect its interests under the
mortgage.
9. Default and Remedies.
9.1 Events of Default. Owner's failure to cure any default in performance of
Owner's obligations under this Agreement within thirty (30) days following City's delivery
of a notice of default shall constitute an Event of Default hereunder and shall entitle the
City to proceed with any of the remedies described below. Notwithstanding the foregoing,
if the default is such that it is not reasonably capable of being cured within thirty (30) days,
an Event of Default shall not arise hereunder if Owner commences to cure the default
within 30 days and thereafter prosecutes the curing of such default to completion with
due diligence and in good faith, but in no event later than ninety (90) days after receipt of
City's notice of default or such longer period as City may agree to in writing.
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(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
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;
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(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
Housinglnfo@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
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
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Agreement. The language of this Agreement shall be construed as a whole according to
its fair meaning and not strictly for or against any Party.
11.9 Time is of the Essence. Time is of the essence in the performance of this
Agreement.
11.10 Governing Law. This Agreement shall be construed in accordance with the
laws of the State of California without regard to principles of conflicts of law.
11.11 Attorneys' Fees and Costs. If any legal or administrative action is brought
to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled
to recover all reasonable attorneys' fees and costs incurred in such action.
11.12 Severability. If any provision of this Agreement is held invalid, illegal, or
unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability
of the remaining provisions shall not be affected or impaired thereby.
11.13 Entire Agreement; Exhibits. This Agreement contains the entire agreement
of Parties with respect to the subject matter hereof, and supersedes all prior oral or written
agreements between the Parties with respect thereto. The exhibits attached hereto are
incorporated herein by this reference.
11.14 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be an original and all of which together shall constitute one agreement.
SIGNATURES ON FOLLOWING PAGE.
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IN WITNESS WHEREOF, the Parties have executed this Agreement effective as
of the date first written above.
OWNER
Buyer
Buyer
CITY OF DUBLIN
Colleen Tribby, City Manager
ATTEST:
Marsha Moore, City Clerk
SIGNATURES MUST BE NOTARIZED.
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Notary Acknowledgement
[Insert Here]
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EXHIBIT A
Development Site Legal Description
The Land referred to herein below is situated in the County of Alameda, State of California,
and is described as follows:
PARCEL ONE:
PARCEL 2 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13
THROUGH 18, INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
PARCEL TWO:
PARCEL 3 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13
THROUGH 18, INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
PARCEL THREE:
PARCEL 4 OF PARCEL MAP 9512, FILED JUNE 23, 2008 IN BOOK 308, PAGES 13
THROUGH 18, INCLUSIVE OF PARCEL MAPS, ALAMEDA COUNTY RECORDS.
APN: 985-0051-006 (AFFECTS: PARCEL ONE); 985-0052-024 (AFFECTS: PARCEL TWO)
and 985-0052-025 (AFFECTS: PARCEL THREE) (APN provided for informational purposes
only.)
SMRH:4858-2345-5165.3
-1-
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Exhibit B
DEPICTION OF RESTRICTED UNIT
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EXHIBIT C
ANNUAL SURVEY SAMPLE
DUBLIN
CALIFORNIA
THE NEW
AMERICAN
BACKYARD
SECONDARY UNIT ANNUAL SURVEY
Please return your completed survey within 30 days to:
City of Dublin Housing Division, 100 Civic Plaza, Dublin, CA 94568
Complete this form electronically
(Checkyour inbox for an email with your survey link)
Owner Name(s):
Unit Address & Development:
Mailing Address:
Contact Information:
Rental and Ownership Verification
Your secondary unit is restricted for income households. To verify the maximum monthly rent a tenant may be charged and
household income limits, visit: www.dublin.ca.gov/housing/rentsandincomelimits.
1. I am currently renting my secondary unit to another household/individual.
If yes:
a. Indicate the monthly rent being charged
b. Identify the number of persons in the tenant household
c. Indicate the annual gross income of the tenant household $
d. Provide a copy of the lease agreement to the City.
2. Provide a copy of your current homeowner's insurance to the City.
I understand that there are restrictions on my property and if 1 choose to refinance, sell or rent my property, I must first
contact the City of Dublin Housing Division at (925) 833-6610 or Housinglnfo@dublin.ca.gov.
YES NO
❑ 0
1 understand that, per my Secondary Unit Regulatory Agreement, if 1 choose to rent my secondary unit, the monthly rent cannot
exceed one -twelfth of thirty percent (30%) of the applicable income level O adjusted for household size, less a utility allowance
as specified by the Housing Authority of Alameda County.
In affixing my/our signature/s below, 1/we affirm that all information provided in this form is true and correct. 1/We understand
that if any information is falsely reported, the City of Dublin may take legal action against me/us.
Signature of Owner, Print Name Date
Signature of Owner, Print Name Date
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EXHIBIT G
Secondary Unit (ADU)
PERFORMANCE DEED OF TRUST
Attached
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Dublin
Attn: City Clerk
100 Civic Plaza
Dublin, CA 94568
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:
Owner:
APN:
PERFORMANCE DEED OF TRUST, ASSIGNMENT OF RENTS, FIXTURE
FILING AND SECURITY AGREEMENT
City of Dublin
Affordable Housing Program — Restricted Secondary Unit
THERE ARE RESTRICTIONS ON THE USE OF THE PROPERTY
ENCUMBERED BY THIS DEED OF TRUST. RENTAL OF THE SECONDARY
UNIT ON THIS PROPERTY IS LIMITED TO INCOME -ELIGIBLE HOUSEHOLDS
AT A QUALIFYING RENT PURSUANT TO THE CITY OF DUBLIN'S
AFFORDABLE HOUSING PROGRAM. CERTAIN LIMITATIONS APPLY TO
THE SALE OF THIS PROPERTY.
THIS DEED OF TRUST, ASSIGNMENT OF RENTS, FIXTURE FILING
AND SECURITY AGREEMENT (this "Deed of Trust") is made as of DATE
("Effective Date") by OWNER (s) as they appear on title (collectively, "Trustor")
to the City of Dublin (the "Trustee") whose business address is 100 Civic Plaza,
Dublin, CA 94568, for the benefit of the City of Dublin, a municipal corporation
("Beneficiary").
RECITALS
A. Trustor is the owner of the real property located at Property address
in the City of Dublin, California 94568 and more particularly described in the
attached Exhibit A (the "Property").
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B. In accordance with City of Dublin Affordable Housing Program
("Program") requirements, Trustor and Beneficiary entered into that certain
Secondary Unit Regulatory Agreement and Declaration of Restrictive Covenants
("Secondary Unit Regulatory Agreement") and recorded in the Official Records
of Alameda County substantially concurrently herewith (the "Secondary Unit
Regulatory Agreement").
C. The secondary unit rental restrictions set forth in this Deed of Trust
and in the Secondary Unit Regulatory Agreement are intended to effectuate the
requirements of the Program.
D. Among other provisions, the Secondary Unit Regulatory Agreement
provides that (i) if rented, the restricted secondary unit must be rented at or below
the Qualifying Rent to Eligible Households (ii) Trustor is subject to certain recording
requirements; and (iii) there are limitations on the sale of the Property.
E. Capitalized terms used and not defined in this Deed of Trust have
the meaning ascribed to them in the Secondary Unit Regulatory Agreement.
NOW THEREFORE, to secure full and timely performance by Trustor of the
Secured Obligation, it is agreed as follows:
1. Grant in Trust. Trustor, in consideration of the promises herein recited and
the trust herein created, hereby irrevocably and unconditionally grants, transfers,
conveys and assigns to Trustee, in trust for the benefit of Beneficiary, with power
of sale and right of entry and possession, all of Trustor's right, title and interest
now held or hereafter acquired in and to the following:
(a) all of that certain real property located at Property address in Dublin,
California 94568, which is more particularly described in Exhibit A, attached hereto
and incorporated herein by this reference (the "Land");
(b) all buildings, improvements and fixtures now or hereafter erected on the
Property and all replacements and additions thereto ("Improvements");
(c) all easements, rights of way, appurtenances and other rights used in
connection with the Property or as a means of access thereto ("Appurtenances");
(d) all fixtures now or hereafter attached to or used in and about the Property
or the Improvements or hereafter located or constructed on the Property, and all
renewals or replacements thereof or articles in substitution therefor, whether or not
the same are, or shall be attached to the Improvements in any manner ("Fixtures
and Equipment"); and
(e) all leases, subleases, licenses and other agreements relating to use or
occupancy of the Property ("Leases") and all rents or other payments which may
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now or hereafter accrue or otherwise become payable to or for the benefit of
Trustor ("Rents") (whether or not such Leases and Rents are permitted pursuant
to the Secondary Unit Regulatory Agreement).
All of the above -referenced Property, Improvements, Appurtenances, Fixtures and
Equipment, Leases and Rents are herein referred to collectively as the "Security."
2. Obligations Secured. This Deed of Trust is given for the purpose of
securing performance of all of the following (the "Secured Obligations"): (i) all
present and future obligations of Trustor set forth in this Deed of Trust or in the
Secondary Unit Regulatory Agreement; (ii) all additional present and future
obligations of Trustor to Beneficiary under any other agreement or instrument
acknowledged by Trustor (whether existing now or in the future) which states that
it is or such obligations are, secured by this Deed of Trust; (iv) all modifications,
supplements, amendments, renewals, and extensions of any of the foregoing,
whether evidenced by new or additional documents; and (v) reimbursement of all
amounts advanced by or on behalf of Beneficiary to protect Beneficiary's interests
under this Deed of Trust.
3. Assignment of Rents, Issues, and Profits. Trustor hereby irrevocably,
absolutely, presently and unconditionally assigns to Beneficiary the rents,
royalties, issues, profits, revenue, income and proceeds of the Property. This is an
absolute assignment and not an assignment for security only. Beneficiary hereby
confers upon Trustor a license to collect and retain such rents, royalties, issues,
profits, revenue, income and proceeds as they become due and payable prior to
any Event of Default hereunder. Upon the occurrence of any such Event of
Default, Beneficiary may terminate such license without notice to or demand upon
Trustor and without regard to the adequacy of any security for the indebtedness
hereby secured, and may either in person, by agent, or by a receiver to be
appointed by a court, enter upon and take possession of the Property or any part
thereof, and sue for or otherwise collect such rents, issues, and profits, including
those past due and unpaid, and apply the same, less costs and expenses of
operation and collection, including reasonable attorneys' fees, to any indebtedness
secured hereby, and in such order as Beneficiary may determine. Beneficiary's
right to the rents, royalties, issues, profits, revenue, income and proceeds of the
Property does not depend upon whether or not Beneficiary takes possession of
the Property. The entering upon and taking possession of the Property, the
collection of such rents, issues, and profits, and the application thereof as
aforesaid, shall not cure or waive any default or notice of default hereunder or
invalidate any act done pursuant to such notice. If an Event of Default occurs while
Beneficiary is in possession of all or part of the Property and/or is collecting and
applying Rents as permitted under this Deed of Trust, Beneficiary, Trustee and
any receiver shall nevertheless be entitled to exercise and invoke every right and
remedy afforded any of them under this Deed of Trust and at law or in equity,
including the right to exercise the power of sale granted hereunder. Regardless of
whether or not Beneficiary, in person or by agent, takes actual possession of the
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Land and Improvements, Beneficiary shall not be deemed to be a "mortgagee in
possession," shall not be responsible for performing any obligation of the lessor
under any Lease, shall not be liable in any manner for the Property, or the use,
occupancy, enjoyment or operation of any part of it, and unless due solely to the
willful misconduct or gross negligence of Beneficiary, shall not be responsible for
any dangerous or defective condition of the Property or any negligence in the
management, repair or control of the Property.
4. Fixture Filing. This Deed of Trust is intended to be and constitutes a fixture
filing pursuant to the provisions of the Uniform Commercial Code ("UCC") with
respect to all of the Property constituting fixtures, is being recorded as a fixture
financing statement and filing under the UCC, and covers property, goods and
equipment which are or are to become fixtures related to the Land and the
Improvements. Trustor covenants and agrees that this Deed of Trust is to be filed
in the real estate records of Alameda County and shall also operate from the date
of such filing as a fixture filing in accordance with Section 9502 and other
applicable provisions of the UCC. This Deed of Trust shall also be effective as a
financing statement covering minerals or the like (including oil and gas) and
accounts subject to the UCC, as amended. Trustor shall be deemed to be the
"debtor" and Beneficiary shall be deemed to be the "secured party" for all purposes
under the UCC. The full name of Trustor and the mailing address of Trustor are
set forth in Section 8.7 of this Deed of Trust.
5. Trustor Representations, Warranties And Covenants
5.1. Trustor's Estate. Trustor represents and warrants that Trustor is
lawfully seized of the estate hereby conveyed and has the right to grant and convey
the Property. Trustor agrees to warrant and defend generally the title to the
Property against all claims and demands subject to any declarations, easements,
or restrictions listed in the schedule of exceptions to coverage in any title insurance
policy insuring Beneficiary's interest in the Property.
5.2 Performance of Covenants. Trustor will observe and perform all of
Trustor's covenants and agreements set forth in the Secondary Unit Regulatory
Agreement, this Deed of Trust, and all other instruments secured by the Property.
5.3 Maintenance of the Property. Trustor agrees: (a) to keep the
Property in good repair and in decent, safe, sanitary, habitable condition and
permit no waste thereof; (b) to repair, restore or rebuild promptly any
Improvements that may be damaged or destroyed while subject to the lien of this
Deed of Trust; (d) to comply with all applicable laws, ordinances and governmental
regulations affecting the Property or requiring any alteration or improvement
thereof, and not to suffer or permit any violations of any such law, ordinance or
governmental regulation, nor of any covenant, condition or restriction affecting the
Property; and (e) not to initiate or acquiesce in any change in any zoning or other
land use or legal classification which affects any of the Property without the
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Beneficiary's written consent. If there arises a condition in contravention of this
Section, and if the Trustor has not cured such condition within thirty (30) days after
receiving a notice from Beneficiary of such a condition, then in addition to any other
rights available to Beneficiary, Beneficiary shall have the right (but not the
obligation) to perform all acts necessary to cure such condition, and to establish or
enforce a lien or other encumbrance against the Property to recover its cost of
cure.
5.4 Appear and Defend. Trustor shall appear in and defend any action
or proceeding purporting to affect the Property or the rights or powers of the
Beneficiary or Trustee, and shall pay all costs and expenses, including cost of
evidence of title and attorney's fees in a reasonable sum, in any such action or
proceeding in which the Beneficiary or Trustee may appear, and in any suit brought
by the Beneficiary to foreclose this Deed of Trust.
5.5 Charges; Liens. Trustor shall pay prior to delinquency all taxes,
assessments, and other charges, fines, and impositions affecting the Property
directly to the payee thereof. Upon request of Beneficiary, Trustor shall promptly
furnish to Beneficiary copies of all notices of such amounts due and shall promptly
furnish to Beneficiary receipts evidencing all such payments made. Trustor shall
pay when due each obligation secured by or reducible to a lien, charge or
encumbrance which now does or later may encumber or appear to encumber all
or part of the Property or any interest therein, whether or not such lien, charge or
encumbrance is or would be senior or subordinate to this Deed of Trust. Trustor
shall not be required to pay any tax, charge or assessment so long as Trustor is
actively contesting its validity in good faith and by appropriate legal proceedings
which will operate to prevent the enforcement of the lien or forfeiture of the Property
or any part thereof. Trustor shall post security for the payment of such contested
claims as may be requested by the Beneficiary.
5.6 Insurance. Trustor shall keep the Land and the Improvements
insured by a standard all-risk property insurance policy in an amount equal to the
replacement value of the Property with loss payable to the Beneficiary. The
insurance carrier providing such insurance shall be licensed to do business in the
State of California and may be chosen by Trustor, subject to approval by
Beneficiary. All insurance policies and renewals thereof will be in a form
acceptable to the Beneficiary, and will include a standard mortgagee clause with
standard lender's endorsement in favor of the holder of any senior lien and the
Beneficiary as their interests may appear and in a form acceptable to the
Beneficiary. The Beneficiary shall have the right to hold, or cause its designated
agent to hold, the policies and renewals thereof, and Trustor shall promptly furnish
to the Beneficiary, or its designated agent, the original insurance policies or
certificates of insurance, all renewal notices and all receipts of paid premiums. In
the event of loss, Trustor will give prompt notice to the insurance carrier and the
Beneficiary or its designated agent. The Beneficiary, or its designated agent, may
make proof of loss if not made promptly by Trustor. The Beneficiary shall receive
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thirty (30) days advance written notice of the cancellation, expiration or termination
or any material change in the coverage afforded by any of the insurance policies
required under this Section.
Unless otherwise permitted by the Beneficiary in writing, insurance
proceeds, subject to the rights of the holder of any senior lien, will be applied to
restoration or repair of the Property damaged. If the Property is abandoned by
Trustor, or if Trustor fails to respond to the Beneficiary, or its designated agent,
within thirty (30) days from the date notice is mailed by either of them to Trustor
that the insurance carrier offers to settle a claim for insurance benefits, the
Beneficiary, or its designated agent, is authorized to collect and apply the
insurance proceeds at the Beneficiary's option either to restoration or repair of the
Property or to pay amounts due under the Secondary Unit Regulatory Agreement.
If the Property is acquired by the Beneficiary, all right, title and interest of
Trustor in and to any insurance policy and in and to the proceeds thereof resulting
from damage to the Property prior to the sale or acquisition will pass to the
Beneficiary to the extent of the sums secured by this Deed of Trust immediately
prior to such sale or acquisition, subject to the rights of the holder of any senior
lien.
Renewal policies and any replacement policies, together with premium
receipts satisfactory to the Beneficiary, shall be delivered to the Beneficiary at least
thirty (30) days prior to the expiration of existing policies. Neither Trustee nor the
Beneficiary shall by reason of accepting, rejecting, approving or obtaining
insurance incur any liability for the existence, nonexistence, form or legal
sufficiency of such insurance, or solvency of any insurer for payment of losses.
6. IT IS MUTUALLY AGREED THAT:
6.1. Protection of Beneficiary's Security. If Trustor fails to perform the
covenants and agreements contained in this Deed of Trust, or if any action or
proceeding is commenced which materially affects Beneficiary's interest in the
Property, including, but not limited to, default under any senior lienholder
document, eminent domain, insolvency, code enforcement, arrangements or
proceedings involving a bankrupt or decedent, foreclosure of any mortgage
secured by the Property or sale of the Property under a power of sale of any
instrument secured by the Property, then Beneficiary, at Beneficiary's option,
without releasing Trustor from any obligation hereunder, may upon notice to
Trustor, make such appearance, disburse such sums and take such action as is
necessary to protect Beneficiary's interest, including, but not limited to, the
purchase of insurance, disbursement of reasonable attorneys' fees and entry upon
the Property to make repairs. Any amounts disbursed by Beneficiary pursuant to
this Section, with interest thereon, shall become additional indebtedness of Trustor
secured by this Deed of Trust. Unless Trustor and Beneficiary agree to other terms
of payment, such amounts shall be payable upon notice from Beneficiary to Trustor
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requesting payment thereof, and shall bear interest from the date of disbursement
at the highest rate permissible under applicable law. Nothing contained in this
Section shall require Beneficiary to incur any expense or take any action
hereunder.
6.2 Inspection. Beneficiary or its agent may make or cause to be made
reasonable entries upon and inspections of the Property. Beneficiary shall give
Trustor reasonable notice prior to any such inspection.
6.3 Awards and Damages. Subject to the rights of senior lienholders, all
judgments, awards of damages, settlements and compensation made in
connection with or in lieu of (a) taking of all or any part of or any interest in the
Property by or under assertion of the power of eminent domain, (b) any damage
to or destruction of the Property or any part thereof by insured casualty, and (c)
any other injury or damage to all or any part of the Property, are hereby assigned
to and shall be paid to the Beneficiary. The Beneficiary is authorized and
empowered (but not required) to collect and receive any such sums and is
authorized to apply them in whole or in part upon any indebtedness or obligation
secured hereby, in such order and manner as the Beneficiary shall determine at
its option. The Beneficiary shall be entitled to settle and adjust all claims under
insurance policies provided under this Deed of Trust and may deduct and retain
from the proceeds of such insurance the amount of all expenses incurred by it in
connection with any such settlement or adjustment. All or any part of the amounts
so collected and recovered by the Beneficiary may be released to Trustor upon
such conditions as the Beneficiary may impose for its disposition. Application of
all or any part of the amounts collected and received by the Beneficiary or the
release thereof shall not cure or waive any default under this Deed of Trust. If the
Property is abandoned by Trustor, or if, after notice by Beneficiary to Trustor that
the condemnor offers to make an award or settle a claim for damages, Trustor fails
to respond to Beneficiary within thirty (30) days after the date such notice is mailed,
Beneficiary is authorized to collect and apply the proceeds, at Beneficiary's option,
either to restoration or repair of the Property or to the sum secured by this Deed of
Trust.
6.4 Prohibition on Transfers of Interest. With the exception of the
transfers permitted pursuant to Section 6.9 below, if all or any part of the Property
or an interest therein is sold or transferred by Trustor in violation of the Secondary
Unit Regulatory Agreement, Beneficiary may, at Beneficiary's option, declare all
sums secured by this Deed of Trust to be immediately due and payable. If
Beneficiary exercises such option to accelerate, Beneficiary shall mail Trustor
notice of acceleration in accordance with Sections 7.2 and 8.7 hereof. Such
notices shall provide a period of not less than 30 days from the date the notice is
mailed within which Trustor may pay the sums declared due. If Trustor fails to pay
such sums prior to the expiration of such period, Beneficiary may, without further
notice or demand on Trustor, invoke any remedies permitted by Section 7.2(a)
hereof.
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6.5 Sale or Forbearance. No sale of the Property, forbearance on the
part of Beneficiary or extension of the time for payment of the indebtedness hereby
secured shall operate to release, discharge, waive, modify, change or affect the
liability of Trustor either in whole or in part.
6.6 Beneficiary's Rights to Release. Without affecting the liability of any
person for payment of any indebtedness hereby secured (other than any person
released pursuant hereto), including without limitation any one or more endorsers
or guarantors, and without affecting the lien hereof upon any of the Property not
released pursuant hereto, at any time and from time to time without notice: (a)
Beneficiary may in its sole discretion: (i) release any person now or hereafter liable
for payment of any or all such indebtedness, (iii) extend the time for or agree to
alter the terms of payment of any or all of such indebtedness, and (iii) release or
accept additional security for such indebtedness, or subordinate the lien or charge
hereof; and (b) Trustee, acting pursuant to the written request of the Beneficiary,
may reconvey all or any part of the Property, consent to the making of any map or
plot of the Land, join in granting any assessment thereon, or join in any such
agreement of extension or subordination.
6.7 Reconveyance. Upon payment of all sums and satisfaction of all
obligations secured by this Deed of Trust (including without limitation, the
satisfaction of all obligations set forth in the Secondary Unit Regulatory Agreement,
Beneficiary shall request Trustee to reconvey the Property and shall surrender this
Deed of Trust to Trustee. Trustee shall reconvey the Property without warranty
and without charge to the person or persons legally entitled thereto. Such person
or persons shall pay all costs of recordation, if any. The recitals in the
reconveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof.
6.9 Permitted Transfers. Subject to compliance with the terms and
conditions set forth in the Secondary Unit Regulatory Agreement, the following
transfers shall not be deemed to be a default hereunder:
(a) The transfer of the Property to a surviving spouse, child or joint
tenant by devise, descent or operation of the law, on the death of a joint tenant.
(b) A transfer of the Property where the spouse or domestic partner of
Trustor becomes a co-owner of the Property.
(c) A transfer of the Property resulting from a decree of dissolution of
marriage, legal separation or from an incidental property settlement agreement by
which the spouse of Trustor becomes an owner of the Property.
(d) A transfer to an inter vivos or living trust in which the Trustor is and
remains the beneficiary of the trust and the occupant of the Property.
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7. EVENTS OF DEFAULT
7.1 Events of Default. Any one or more of the following events shall
constitute a default under this Deed of Trust:
(a) Rental of the Secondary Unity to a household that does not
qualify as an Eligible Household.
(b) Rental of the Secondary Unit at a monthly rent that exceeds
the Qualifying Rent.
(c) The sale, conveyance, encumbrance or other transfer of the
Property in violation of the Secondary Unit Regulatory
Agreement.
(d) An event of default arises under any other loan secured by the
Property and such default remains uncured following the
expiration of any applicable cure period.
(e) Trustor encumbers or refinances the Property in violation of
the Secondary Unit Regulatory Agreement.
(f)
(g)
(g)
Trustor fails to pay real estate taxes, assessments or
homeowner's association dues, when due, or Owner fails to
maintain insurance in such amounts as required under this
Agreement, and such event or condition shall not have been
cured within thirty (30) days following the date of written notice
of default from Beneficiary.
Trustor fails to observe or perform any other covenant,
condition, or agreement to be observed or performed by
Trustor pursuant to this Deed of Trust, and Trustor fails to cure
such default within 30 days following the date of written notice
of default from Beneficiary.
An event of default arises under the Secondary Unit
Regulatory Agreement.
(h) Trustor declares bankruptcy or makes an assignment of
assets for the benefit of creditors.
7.2 Acceleration and Sale.
(a) Default; Remedies. Upon Trustor's breach of any covenant
or agreement of Trustor under the Secondary Unit Regulatory Agreement or this
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Deed of Trust (including without limitation, Trustor's encumbrance or refinancing
of the Property in violation of the foregoing agreements) Beneficiary shall, prior to
acceleration, mail notice to Trustor as provided in Section 8.7 hereof specifying: (i)
the nature of the breach; (ii) the action required to cure such breach; (iii) a date no
less than thirty (30) days from the date the notice is mailed to Trustor by which
such breach must be cured; and (iv) that failure to cure such breach on or before
the date specified in the notice may result in the sale of the Property. The notice
shall further inform Trustor of Trustor's right to reinstate after acceleration and the
right to bring a court action to assert the nonexistence of a default or any other
defense of Trustor to acceleration and sale. If the breach is not cured on or before
the date specified in the notice, Beneficiary at Beneficiary's option may: (a) if
applicable, declare all of the sums secured by this Deed of Trust to be immediately
due and payable without further demand and invoke the power of sale; (b)
commence an action to foreclose this Deed of Trust as a mortgage, appoint a
receiver, or specifically enforce any of the covenants set forth herein; (c) deliver to
the Trustee a written declaration of default and demand for sale pursuant to the
provisions for notice of sale found at California Civil Code Sections 2924 et seq.,
and (d) pursue any other remedy permitted under California law. Beneficiary shall
be entitled to collect from the Trustor, or from the proceeds of the sale of the
Property, all reasonable costs and expenses incurred in pursuing the remedies
provided in this paragraph, including, but not limited to, reasonable attorneys' fees.
(b) Trustor's Right to Reinstate. Trustor will have the right to have
any proceedings begun by Beneficiary to enforce this Deed of Trust discontinued
at any time prior to five (5) days before sale of the Property pursuant to the power
of sale contained in this Deed of Trust or at any time prior to entry of the judgment
enforcing this Deed of Trust if: (a) Trustor pays Beneficiary all sums which would
be then due under this Deed of Trust had no acceleration occurred; (b) Trustor
pays all reasonable expenses incurred by Beneficiary and Trustee in enforcing the
covenants and agreements of Trustor contained in this Deed of Trust, including,
but not limited to, reasonable attorneys' fees; (c) Trustor cures all breaches of any
other covenants or agreements of Trustor set forth in the Secondary Unit
Regulatory Agreement, and (d) Trustor takes such action as Beneficiary may
reasonably require to assure that the lien of this Deed of Trust, Beneficiary's
interest in the Property and Trustor's obligation to pay the sums and perform the
obligations secured by this Deed of Trust shall continue unimpaired. Upon such
payment and cure by Trustor, this Deed of Trust and the obligations secured
hereby will remain in full force and effect as if no acceleration had occurred.
(c) Sale. After delivery to Trustee of a Notice of Default and Demand
for Sale and after the expiration of such time and the giving of such notice of default
and sale as may then be required by law, and without demand on Trustor, Trustee
shall sell the Property at the time and place of sale fixed by it in said notice of sale,
at public auction to the highest bidder for cash in lawful money of the United States
of America, payable at time of sale. Trustee may postpone sale of all or any portion
of the Property by public announcement at such time and place of sale and from
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time to time thereafter may postpone such sale by public announcement at the
time and place fixed by the preceding postponement. Any person, including
Trustor, Trustee or the Beneficiary, may purchase at such sale. Upon such sale
by Trustee it shall deliver to such purchaser its deed conveying the Property so
sold, but without any covenant or warranty expressed or implied. The recitals in
such deed of any matters or facts shall be conclusive proof of their truthfulness.
Upon sale by Trustee and after deducting all costs, expenses and fees of Trustee,
Trustee shall apply the proceeds of sale to the payment of the indebtedness
hereby secured, including any advances made or costs or expenses paid or
incurred by Beneficiary under this Deed of Trust, any indebtedness evidenced by
any other instrument hereby secured, and all other sums then secured hereby, in
such order as the Beneficiary shall direct; and then the remainder, if any, shall be
paid to the person or persons legally entitled thereto.
(d) Assignment of Rents; Appointment of Receiver; Beneficiary in
Possession. Upon acceleration under Section 7.2(a) or abandonment of the
Property, Beneficiary (in person, by agent or by judicially appointed receiver) shall
be entitled to enter upon, take possession of and manage the Property and to
collect the rents of the Property (if any) including those past due. All rents collected
by Beneficiary or the Receiver shall be applied first to payment of the costs of
management of the Property and collection of rents including, but not limited to,
receiver's fees, premiums on receiver's bonds and reasonable attorney's fees, and
then to the sums secured by this Deed of Trust. Beneficiary and the receiver shall
be liable to account only for those rents actually received. The provisions of this
paragraph and Section 7.2(a) shall operate subject to the claims of prior lien
holders.
7.3 Remedies Cumulative; No Waiver. No exercise of any right or
remedy by the Beneficiary or Trustee hereunder shall constitute a waiver of any
other right or remedy herein contained or provided by law, and no delay or
forbearance by the Beneficiary or Trustee in exercising any such right or remedy
hereunder shall operate as a waiver thereof or preclude the exercise thereof in
any continued or subsequent default hereunder. All remedies provided in this
Deed of Trust are distinct and cumulative to any other right or remedy under this
Deed of Trust or any other document, or afforded by law or equity, and may be
exercised concurrently, independently or successively.
7.4 Trustee Substitution. The irrevocable power to appoint a substitute
trustee or trustees hereunder is hereby expressly granted to the Beneficiary, to be
exercised at any time hereafter, without specifying any reason therefore, by filing
for record in the office where this Deed of Trust is recorded a deed of appointment,
and said power of appointment of successor trustee or trustees may be exercised
as often as and whenever the Beneficiary deems advisable. The exercise of said
power of appointment, no matter how often, shall not be deemed an exhaustion
thereof, and upon recording of such deed or deeds of appointment, the trustee or
trustees so appointed shall thereupon, without further act or deed of conveyance,
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succeed to and become fully vested with identically the same title and estate in
and to the Property hereby conveyed and with all the rights, powers, trusts and
duties of the predecessor in the trust hereunder, with the like effect as if originally
named as trustee or as one of the trustees.
7.5 Superiority of First Lender Documents. Notwithstanding any
provision herein, this Deed of Trust shall not diminish or affect the rights of the First
Lender under the First Lender Deed of Trust or any subsequent First Lender deeds
of trust hereafter recorded against the Security in compliance with the
requirements of Section 8.3 of the Secondary Unit Regulatory Agreement.
Notwithstanding any other provision hereof, the provisions of this Deed of
Trust shall be subordinate to the lien of the First Lender Deed of Trust and shall
not impair the rights of the First Lender, or such lender's assignee or successor in
interest, to cure a default under the loan terms, to exercise its remedies under the
First Lender Deed of Trust in the event of default under the First Lender Deed of
Trust by the Trustor, or to protect its interests under the First Lender Deed of Trust.
Such remedies under the First Lender Deed of Trust include the right of foreclosure
or acceptance of a deed or assignment in lieu of foreclosure. After such
foreclosure or acceptance of a deed in lieu of foreclosure, this Deed of Trust shall
be forever terminated and shall have no further effect as to the Property or any
transferee thereafter; provided, however, if the holder of such First Lender Deed
of Trust acquired title to the Property pursuant to a deed or assignment in lieu of
foreclosure, this Deed of Trust shall automatically terminate upon such acquisition
of title, provided that (i) the City has been given written notice of default under such
First Lender Deed of Trust with a sixty (60)-day cure period and (ii) the City shall
not have cured or commenced to cure the default within such sixty (60)-day period
or commenced to cure and given its firm commitment to complete the cure in form
and substance acceptable to the First Lender.
8. MISCELLANEOUS PROVISIONS
8.1 Successors and Assigns. The covenants and agreements contained
in this Deed of Trust shall bind, and the benefit and advantages hereunder shall
inure to, the respective heirs, executors, administrators, successors and assigns
of the parties; provided however, nothing in this Section is intended to or shall
modify any restrictions on assignment set forth herein or in the Secondary Unit
Regulatory Agreement. As used herein, the words "the Beneficiary" means the
present Beneficiary or any future owner or holder, including a pledgee of the
indebtedness secured hereby.
8.2 Headings; Gender, Number. The captions and headings used in this
Deed of Trust are inserted only for convenience of reference and in no way define,
limit, or describe the scope or intent of this Deed of Trust, or of any particular
provision thereof, or the proper construction thereof. Wherever used, the singular
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number shall include the plural, and the plural the singular, and the use of any
gender shall be applicable to all genders.
8.3 Approvals in Writing. Except as otherwise specifically provided
herein, whenever any approval, notice, direction, consent, request or other action
by the Beneficiary is required or permitted under this Deed of Trust, such action
shall be in writing.
8.4 Joint and Several Obligations. If more than one person has executed
this Deed of Trust as Trustor, the obligations of all such persons hereunder shall
be joint and several.
8.5 Severability. If any provision of this Deed of Trust shall be held by a
court of competent jurisdiction to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions hereof shall not in any way
be affected or impaired thereby.
8.6 Indemnification. Trustor agrees to indemnify, defend (with counsel
approved by Beneficiary) and hold the Beneficiary, its elected and appointed
officers, officials, agents and employees ("Indemnitees") harmless from and
against any and all losses, damages, claims, actions, demands, judgments,
penalties, costs and expenses (including reasonable attorneys' fees) and liabilities
(all of the foregoing, collectively "Claims") which the Indemnitees may sustain or
suffer directly or indirectly as a result of or arising in connection with (i) Trustor's
failure to perform any obligations as and when required by the Secondary Unit
Regulatory Agreement or this Deed of Trust, (ii) the failure at any time of any of
Trustor's representations and warranties to be true and correct, or (iii) any action
or omission by Indemnitees in connection with this Deed of Trust, except to the
extent any such Claim arises due to the gross negligence or willful misconduct of
Indemnitees.
8.7 Notices. Except for any notice required under applicable law to be
given in another manner (a) any notice to Trustor provided for in this Deed of Trust
shall be given by mailing such notice by certified mail directed to the Property
address or any other address Trustor designates by notice to Beneficiary as
provided herein; and, (b) any notice to Beneficiary shall be given by certified mail,
return receipt requested, to Beneficiary's mailing address stated herein or to such
other address as Beneficiary may designate by notice to Trustor as provided
herein. Any notice provided for in this Deed of Trust shall deem to have been given
to Trustor or Beneficiary when given in the manner designated herein.
Beneficiary: City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Clerk
Housinglnfo@dublin.ca.gov
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Trustor: First Name and Last Name
123 Main Street
Dublin, CA 94568
8.8 Beneficiary Statement. Beneficiary may collect a fee for furnishing
the beneficiary statement in an amount not to exceed the amount as provided by
Section 2943 of the Civil Code of California.
8.9 Governing Law. This Deed of Trust shall be governed by the laws of
the State of California.
SIGNATURES ON FOLLOWING PAGE.
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IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the
date first written above.
TRUSTOR
Signature
Signature
SIGNATURES MUST BE NOTARIZED.
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Notary Acknowledgement
[Insert Here]
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EXHIBIT A
LEGAL DESCRIPTION
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