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HomeMy WebLinkAboutItem 4.07 Positano Ph 1 Afford House (Cont) f tot ~ 'z~ ~ SUBSEQUENT AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. Subsequent and Final Phases (627 Residential Lots) of the Positano Project THIS AGREEMENT is hereby entered into this ~ day of Nn /, 2008 by and among the City of Dublin ("the City") and Dublin RE Investors; L.L.C., a California limited liability company and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). Recitals A. Chapter 8.68 of the Dublin Municipal Code contains Inclusionazy Zoning Regulations ("the Regulations"). The Regulations were adopted pursuant to Strategy I.B. of the City's General Plan Housing Element, the purpose of which is to create affordable housing opportunities in the City of Dublin for very low-, low- and moderate-income households. B. The City of Dublin adopted the Regulations recognizing that the cost of new housing is so high that persons with very low-, low- and moderate-incomes aze increasingly unable to locate affordable housing in the City. The purpose of the Regulations is to achieve a balanced community with housing available at all income levels. C. Accordingly, the Regulations require that residential projects with 20 or more units/lots contain at least 12.5% very low-, low- and moderate-income units/lots. The Regulations require that the units be constructed in the following proportions: 30% very low- income, 20% low-income, and 50% moderate income. ]:n lieu of constructing 40% of the Inclusionary Units that the Regulations would otherwise require, the Regulations authorize developers to pay a fee, currently set by the City through June 30, 2009 at $91,916 per unit required but not built. if fees are paid in lieu of construction, developers are still required to conswct 60% of the obligation. D. Developer is the owner of, or has the right to purchase, certain real property in the City of Dublin generally located east of Fallon Road and more specifically described in Exhibit 1 (the "Property"). The Property includes the Subsequent Phase, the Final Phase, and the Expanded First Phase, all as defined in Section 2 of this Agreement. E. Developer and its successors-in-interest desire to construct a residential project on the Property that consists of 1,043 for-sale units (collectively "the Project"), and the Project is subject to the Regulations. The Subsequent Phase, the Final Phase, and the Expanded First Phase are depicted in Exhibit 2. F. On November 8, 2005, the Planning Commission ("PC") approved a vesting tentative subdivision map (PC Reso. No. OS-61) ("the VTM Resolution") to create 1,043 residential Subsequent Affordable Housing Agreement for the Positano Project ,~~ ~-r~ parcels, and, on September 11, 2007, the Planning Commission approved Site Development Review ("SDR") for an initial phase of the Project on approximately 72 acres, which includes 2471ots. Developer has filed the first of "multiple final maps" based on the tentative subdivision map, which created 247 residential pazcels. G. Condition No. 2 of the VTM Resolution provides as follows: Inc[usionary Zoning: Prior to approval of Site Development Review or recordation of the first phased Final Map, whichever occurs first, the owner or owners of all the property subject to this vesting tentative map shall enter into an Affordable Housing Agreement with the City for the entire Vesting Tentative Map area, which agreement shall be recorded against such area and against any other property where Developer proposes to construct off-site affordable units if approved by the City Council pursuant to Dublin Municipal Code section 8.68.040.B. Such agreement shall include but is not limited to providing detail regarding the number of affordable units required, specify the schedule of construction of affordable units, set forth the developer's manner of compliance with City of Dublin Inclusionary Zoning Regulations and impose appropriate resale controls and/or rental restrictions on the affordable units. If the agreement provides for construction of the units off-site, as provided in DMC section 8.68.040.B, it shall require City Council approval and Council findings as required by said section and shall include provision for security adequate to assure completion of the off-site affordable units concurrently with the completion of the construction of the market rate units to be constructed on the lots created by the vesting tentative map. H. Under the Regulations, the City Council may wholly or partially waive the requirements of the Regulations and approve alternate methods of compliance with this Chapter if the applicant demonstrates and the City Council finds that such alternate methods meet the purposes of the Regulations. I. Based on 1,043 units, the Developer's inclusionary zoning obligation under the Regulations would be 130 units (1,043 times 0.125 equals 130.375), and it would be permitted to pay fees in lieu of construction to satisfy the obligation as to 52 units (130 times 0.4 equals 52), leaving amust-build obligation of 78 units. J. In the fall of 2005, as means of satisfying its inciusionary housing obligations for the entire 1,043 unit project, Developer proposed an alternative method of compliance that would result in the construction of a total of 130 inclusionazy units. K. Specifically, under its initial proposal, Developer would: (a) build 26 integrated units on 4,000 square foot lots, which would be fully compliant with the Regulations, and would in addition be affordable in perpetuity; (b) build 26 1 bedroom, secondary dwelling units on 6,000 square foot lots, which would be rental units and affordable in perpetuity; (c) build an 88-unit off-site affordable project consisting of 2 bedroom, 2 bathroom rental apartments, which would Subsequent Affordable Housing Agreement for the Positano Project include 78 inclusionazy units to satisfy the obligations of the Project; and (d) contribute a $1,000,000 community benefit payment to the City. L. On October 18, 2005, the City Council conceptually approved the Developer's initial proposal and directed City staff to work with the Developer to (a) refine the proposal to include landscaping in the reaz yards and using energy efficient measures for the integrated affordable homes to bring down the cost of ownership; (b) work on timing issues and obtain necessary security for the completion of the off-site project; (c) study the feasibility of the integrating the 88 unit off-site project into a larger mixed income project; and (d) incorporate green building principles in the project as practical. M. Subsequently, the City and DREI entered into an initial affordable housing agreement ("the First Phase Agreement"), dated June 5, 2007, for the first phase of the Project, which consists of 247 residential parcels and the location of which is shown on Exhibit 2 ("Part One of the Expanded First Phase"), and that agreement was subsequently amended on June 17, 2008 and is being amended again concurrently with the execution of this Agreement to expand the number of residential units subject to the First Phase Agreement to 416 units and to expand the number of inclusionary units provided by Developer in the First Phase Agreement to 52 inclusionary units. DREI has also conveyed some of the residential units in the Expanded First Phase to Braddock & Logan Group II, L.P., which accordingly has become a party to this Agreement. N. The First Phase Agreement as amended satisfies the affordable housing obligations solely as to the Expanded First Phase (416 residential units), and provides that further development beyond the Expanded First Phase would require a subsequent affordable housing agreement. O. The parties now desire to enter into a subsequent affordable housing agreement, which would apply to that portion of the Property that contains those portions of the Project outside of the Expanded First Phase. P. Developer, following further discussions with City staff, has now proposed an alternate method to satisfy its 130 unit inclusionary unit obligation for the Project by (a) constructing a total of 130 inclusionazy units as follows: (i) 18 integrated inclusionary units, which would be affordable in perpetuity, rather than for 55 yeazs as the Regulations require ("the Integrated Units"), (ii) 34 1-bedroom, secondazy dwelling units, which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"), and (iii) 78 off-site affordable rental units; (b) making a community benefit payment prior to issuance of each building permit equal to $958.77 (which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); (c) including reaz yard landscaping and energy efficiency measures to reduce the homeowners' cost of living in the 18 integrated inclusionary units; and (d) incorporating green building principles into the 130 inclusionary units. Q. Developer has also received entitlements from the City to build an offsite rental apartment project, which consists of, among other things, 78 Inclusionary Units that are designed Subsequent Affordable Housing Agreement for the Positano Protect tco~ ~°~ ~ to satisfy a portion of the inclusionazy housing obligations of the Project ("the Anderson Residential Project"). R. The City Council hereby finds that the alternate method of complying with the Regulations for the Project, as set forth below and in the First Phase Agreement as amended, meets the purposes of the Regulations. NOW, THEREFORE, in satisfaction of the requirements of Chapter 8.68 of the Dublin Municipal Code, in partial satisfaction of condition 2 of the VTM Resolution and in consideration of the City's approval of the Project, Developer and City for themselves and their respective successors and assigns 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. Developer's Compliance with Affordable Housing Obli ation. Developer intends to complete the Project in multiple phases, including a phase that includes 8 model homes. Section 8.68.030 of the Regulations requires that all affordable units in a project be constructed concurrently with a project or phase of a project. The City hereby finds that adherence to the following schedule of construction for the Inclusionazy Units would constitute construction of the Inclusionary Units concurrently with the market rate units in the Project as required by Section 8.68.030 of the Regulations. a. Expanded First Phase (Initia1416 Residential Parcels). The First Phase Agreement, as amended, requires that the Developer will satisfy its 52-unit Affordable Housing Obligation for the Expanded First Phase, which is depicted in Exhibit 2, by (a) constructing 52 Inclusionazy Units (25 1-bedroom, very low-income, Second Units; 3 4-bedroom, low-income Integrated Units; 9 1-bedroom, low-income, Second Units; and 15 4-bedroom, moderate-income Integrated Units); and (b) making a $958.77 community benefit payment prior to issuance of each building permit in the Expanded First Phase. b. Subsequent Phase (88 Residential Parcels). Developer has identified an 88-lot portion of the Property, which is depicted in Exhibit 2, that is referred to herein as the "Subsequent Phase." Prior to development on, and approval of subsequent final maps that include, any portion of the Subsequent Phase, Developer shall pay in-lieu fees to fulfill its obligation to construct 11 inclusionary units required in the Subsequent Phase in the amount required by the Regulations and Council Resolution No. 56-02. If the in-lieu fee payment were made today, and through July 1, 2009, the amount would be $953,040. As required by the Regulations, the entirety of the fee shall be paid at time of issuance of the first building permit outside of the Expanded First Phase. Instead of paying the in-lieu fee payments required by this Subsection, Developer may elect to provide an irrevocable standby letter of credit in an amount equal to the in-lieu fee payment required by this section and in a form acceptable to the City Manager and City Attorney, or such other financial security as the City Manager and City Attorney deem adequate to secure payment of the in-lieu fee required by this section should the Final Phase not be completed as anticipated. Developer hereby agrees that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential parcels in the Expanded First Subsequent Affordable Housing Agreement 4 for the Positano Project E~ ~ ~ ~~~ Phase) pursuant to the tentative map approved by the VTM Resolution until such time as it has satisfied the requirements of this Subsection. c.. Final Phase (Remaining 539 Residential Lots). i. Restrictions on Development of Final Phase. In accordance with the Regulations and Condition 2 of the VTM Resolution, development on, and approval of subsequent final maps that include, any portion of the Property beyond the Expanded First Phase and the Subsequent Phase ("the Final Phase") shall require either an amendment to this Agreement or compliance with the following subsections. Developer hereby agrees that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential pazceIs in the Expanded First Phase and the 88 residential parcels in the Subsequent Phase) pursuant to the tentative map approved by the VTM Resolution until such time as it has satisfied the requirements of this Subsection. ii. Conditions for Partial Release of Restrictions. Upon the commencement of site work for the Anderson Residential Project, the restrictions imposed by Subsection 2.c.i above shall be released so as to allow the development of up to 150 additional residential lots beyond the Expanded First Phase and the Subsequent Phase, for a total of 654 residential lots. Upon the commencement of construction of the structures within the Anderson Residential Project, the restrictions imposed by Subsection 2.c.i above shall be released so as to allow the development of up to 250 additional residential lots beyond the First Phase and the Subsequent Phase, for a total of 754 residential lots. iii. Conditions for Release of Remaining Restrictions; Required City Actions Upon Release. Upon approval of occupancy for the Anderson Residential Project and the recordation against the property on which it sits of a regulatory agreement in substantially the form attached hereto as Exhibit 3: (A) This Agreement shall no longer impose any restrictions on Developer's ability to proceed with the development of the portions of the Project outside the Expanded First Phase and the Subsequent Phase. (B) The City shall refund to Developer any monies paid as in- lieu fees, and not previously refunded and/or return or release any letter of credit or financial security provided to City in place of such in-lieu fees, pursuant to Subsection 2.b., with the City retaining any accrued interest. 3. Community Benefit Payment. Developer hereby agrees to make a $958.77 community benefit payment prior to issuance of the building permit for each residential unit (excepting Second Units) in the Subsequent Phase and Final Phase. The community benefit payment required by this Section shall be in addition to the $2,396.93 community benefit payment required by the Development Agreement for the Fallon Village Project between Developer and the City, dated December 20, 2006. Subsequent Affordable Housing Agreement 5 for the Positano Project I ~~ "'~ ~' 4. Inclusionarv Unit Requirements. a. Unit Bedrooms and Size. The size of the Inclusionary Units within the Anderson Residential Project shall be consistent with the Site Development Review approval, provided however, that minor changes to unit size may be approved by the Community Development Duector through a Site Development Review Waiver. Within the Anderson Residential Project, the developer proposes to provide: 23 very low-income, 2 bedroom, 2 bath units; ii. I61ow-income units, 2 bedroom, 2 bath units; and iii. 39 moderate-income, 2 bedroom, 2 bath units. The City hereby finds that, while this breakdown does not reflect the range of numbers of bedrooms provided in the Project as a whole, as required by Section 8.68.030.E of the Regulations, the Developer's alternate method of compliance meets the purposes of the Regulations. b. Green Building Principles. Construction of the Anderson Residential Project shall incorporate Green Building Principles by meeting the minimum requirements for a GreenPoint Rated home as set forth in the "Multifamily GreenPoint Checklist," attached hereto as Exhibit 4. 5. City Administrative Fee. Prior to the City's execution of either the Resale Agreement or Second Unit Regulatory Agreement, Developer shall pay the City a City Administrative Fee, in an amount to be established from time to time by the City Council and which is currently set at $1,500 per transaction. 6. Term. This Agreement shall be effective until all Inclusionary Units in the Subsequent Phase aze constructed, sold, and subjected to resale restrictions approved by the City pursuant to the terms of this Agreement, and the Developer has satisfied the requirements for release of restrictions set out in Subsection 2.c.iii above. 7. Memorandum of Agreement to be Recorded. Developer and City shall execute and acknowledge a Memorandum of this Agreement ("Memorandum") substantially in the form attached hereto as Exhibit 5, and City shall cause the Memorandum to be recorded in the Official Records of Alameda County upon its execution. 8. Agreement Runs with the Land. All of the provisions, rights, terms, covenants, and obligations contained in this Agreement shall be binding upon the Parties and their respective heirs, successors and assignees, representatives, lessees, and all other persons acquiring the Property, or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever. All of the provisions of this Agreement shall be enforceable as equitable servitude and shall constitute covenants running with the land pursuant to applicable laws, including, but not limited to, Section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder (a) is for the benefit of the Property and is a burden upon the Property, (b) runs with the Property, and (c) is Subsequent Affordable Housing Agreement fi for the Posftano Project binding upon each Party and each successive owner during its ownership of the Property or any portion thereof, and shall be a benefit to and a burden upon each Party and the Property hereunder and each other person succeeding to an interest in the Property. Assignments and Transfers. a. Right to Assign. Developer may wish to sell, transfer or assign all or portions of its Property to other developers (each such other developer is referred to as a "Transferee"). In connection with any such sale, 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 Property being sold or transferred, to such Transferee, provided, however, that: no such transfer, sale or assignment of Developer's rights, interests and obligations hereunder shall occur without prior written notice to City and approval by the City Manager, which approval shall not be unreasonably withheld or delayed. Any such assignment shall include a specific acknowledgment by the Assignee of the restrictions in Subsection 2.c.i above on development and approval of subsequent final maps within the Final Phase. Notwithstanding the foregoing, provided notice is given as specified in Section 19, no City approval shall be required for any transfer, sale, or assignment of this Agreement, in whole or in part, to any entity or group, a majority interest of which is owned or held under common control with Developer ("Aff liate"), provided that in the event of a partial transfer, Developer has, at the time of the transfer, complied with all obligations of this Agreement then required or provided evidence satisfactory to the City Manager demonstrating that the remaitung obligations have been allocated between Developer and Affiliate. b. Approval and Notice of Sale, Transferor Assignment. The City Manager shall consider and decide on any transfer, sale or assignment within ten (10) 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 assigned obligations hereunder. 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 Assi nment. Developer shall be released from any obligations hereunder sold, transferred or assigned to a Transferee pursuant to Section l l.a of this Agreement, provided that: a) such sale, transfer or assignment has been approved by the City Manager pursuant to Sections l l.a and l l .b; and b) such obligations aze expressly assumed by Transferee and provided that such Transferee shall be subject to all the provisions hereof. d. Termination of Agreement Upon Sale of Individual Lots to the Public. Notwithstanding any provisions of this Agreement to the contrazy, the burdens of this Agreement shall terrninate as to any lot which has been finally subdivided and individually (and not in "bulk") sold to the purchaser or user thereof and thereupon and without the execution or recordation of any further document or instrument such lot shall be released from and no longer be subject to or burdened by the provisions of this Agreement; provided, however, that any Subsequent Affordable Housing Agreement for the Positano Project ~~~~u.~ subsequent Resale Agreement recorded against any individual lot, as provided in Section 6.a.iii., shall continue in full force and effect with regard to such individual lot. 10. 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 and any associates in interest, and their respective directors, officers, agents, servants, and employees, and the successors and assigns of each of them, separately and collectively. Developer shall provide notice to the City of the names and mailing addresses of any such successors or assigns. 11. Hold Harmless. Developer shall hold City, its elective and appointive boards, commission, officers, agents and employees harmless from and against any or all loss, liability, expense, claim, costs, suits, damages of every kind, nature and description directly or indirectly arising from the performance of the obligations or undertakings of Developer pursuant to this Agreement. Developer shall defend City and its elective and appointive boards, commission, officers, agents and employees from any suits or actions at law or in equity for damages caused or alleged to have been caused, by reason of any of the obligations or undertakings of Developer pursuant to this Agreement. It is further provided that this hold harmless agreement shall apply to all damages and claims for damages for every kind suffered, or alleged to have been suffered, by reason of any of the obligations or undertakings of Developer pursuant to this Agreement. 12. Enforcement. If the Developer defaults in the performance or observance of any covenant, condition, restriction or obligation of the Developer as set forth in this Agreement, and such default remains uncured for a period of thirty (30) days after notice thereof is given by the City (or such longer period as may be necessary to cure the default, provided that Developer commence the cure within the thirty (30) day period and diligently prosecutes the cure to completion), the City may take any one or more of the following steps: a. By specific performance or other action or proceeding at law or in equity, require the Developer to perform its obligations under this Agreement or enjoin any acts or things which may be unlawful or in violation of the rights of the City hereunder. b. Take such other action at law or in equity as may appear necessary or desirable to enforce the obligations, covenants, conditions and restrictions of the Developer under this Agreement. c. If Developer transfers any portion of the project in bulls 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. 13. Attorneys' Fees. >f legal action is necessary to enforce any provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and legal costs. 14. Amendments. This Agreement shall be amended only by a written instrument executed by the parties hereto or their successors in interest and duly recorded in the Official Records of the County of Alameda, California. Subsequent Affordable Housing Agreement 8 for the Positano Protect ~~a ~-~ Mw= _ ~ In the event that Developer is unable to perform its obligations under Sections 3 and 6 of this Agreement due to significant changes in circumstances, such as unanticipated delays in construction within any of the neighborhoods, the City shall confer with Developer in an effort to reach a mutually acceptable resolution, consistent with the terms of the affordable housing conditions in the Approvals. If an agreement is reached, this Agreement shall be amended accordingly. Developer shall pay the City its reasonable costs, including attorneys' fees, incurred in such negotiations and in amending this Agreement, 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. 15. Corporate Authoritx. If either party 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. 16. Notices. All notices required or provided for under this Agreement shall be in writing. Notices required to be given to CITY shall be addressed as follows: City Manager City of Dublin 100 Civic Plaza Dublin, CA 94568 Notices required to be given to Developer shall be addressed as follows: Jeff Lawrence Dublin RE Investors Braddock & Logan Group II, L.P. 4155 Blackhawk Plaza Circle, Suite 201 Danville, CA 94506 FAX No. (925) 648-5700 A party may change address by giving notice in writing to the other party and thereafter ail notices shall be addressed and transmitted to the new address. Notices shall be deemed given and received upon personal delivery, or if mailed, upon the expiration of 48 hours after being deposited in the United States Mail. Notices may also be given by overnight courier which shall be deemed given the following day or by facsimile transmission which shall be deemed given upon verification of receipt. 17. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit 1 Property Description of the Property Exhibit 2 Diagram of the First Phase, Subsequent Phase, and Final Phase of the Project Subsequent Affordable Housing Agreement 9 for the Positano Project ~~~~ ~~ Exhibit 3 Form of Regulatory Agreement for Anderson Residential Project Exhibit 4 Multifamily GreenPoint Checklist Exhibit S Memorandum of Subsequent Affordable Housing Agreement for the Construction of Inclusionary Units and the Payment of Fees In-Lieu of Constructing Inclusionary Housing Units IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN B ti.v i~4~~U.~ y• Joni Pattillo, City Manager Attest: ~~ Cazoline Soto, City Clerk Approved as to form Jo akker, City Attorney 1160194.5 DUBLIN RE INVESTORS, LLC a California limited liability company By: Braddock and Logan Services, Inc. a California corporation Its Manager Name: s: BRADDOCK & LOGAN GROUP II, L.P. A Califomia limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner X- Name: Subsequent Affordable Housing Agreement 10 for the Positano Project l~'2 ~`~~ EXffiBIT 1 Property Description of the Property l~ ; ~yo . 19149-10 10/21/2008 MW/SK ~B~ uA ~~ Page 1 Aj4 FALCON YII~LAGE PROPERTY ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF DUBLIN, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, BEING ALL OF THE NORTHWEST QUARTER OF SECTION 35 AS DESCRIBED IN SERIES No. 2003-108250, ALAMEDA COUNTY RECORDS, AS WELL AS A PORTION OF. THE SOUTH HALF OF SECTION 27 AS SHOWN ON PARCEL MAP 9208 RECORDED IN BOOK 292 OF MAPS PAGES 16-17, ALAMEDA COUNTY RECORDS AND A PORTION OF THi; NORTH HALF OF SECTION 34 AS SHOWN ON SAID PARCEL MAP 9208, LYING WITHIN TOWNSHIP 2 SOUTH, RANGE 1 EAST, MOUNT DIABLO BASE AND MERIDIAN, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL 1 ~ . BEGINNING AT THE COMMON QUARTER CORNER OF SECTIONS 26 AND 27 AS SHOWN ON SAID PARCEL MAP 9208, ALONG THE SECTION LINE COMMON TO SAID SECTIONS 26 AND 27, SAID SECTION LINE BEING ALSO THE WESTERLY LINE OF ~ LANDS OF MUEHI.HAUSER, RECORDED IN SERIES No.2002-097480, ALAMEDA COUNTY RECORDS, SOUTH 00°48'41" WEST 2,642.65 FEET, TO THE COMMON SECTION CORNER OF SECTIONS 26, 27, 34, AND 35; • THENCE ALONG THE COMMON SECTION LINE OF SECTIQNS 34 AND 35, SAID SECTION LINE BEING ALSO THE WESTERLY LINE OF DUBLIN RE INVESTORS, LLC, SERIES No. 2003-]08250, ALAMEDA' COUNTY RECORDS, SOUTH 00°44'28" WEST 2,635.93 FEET, TO THE COMMON QUARTER CORNER OF SECTIONS 34 AND 35; THENCE ALONG THE EAST-WEST QUARTER SECTION LINE ENTERING SECTION • 34, SAID , EAST-WEST QUARTER SECTION LINE BEING ALSO THE NORTHERLY LINE OF FIRST AMERICAN TITLE GUARANTY CO., SERIES No. 98388140, ALAMEDA COUIyTY RECORDS, NORTH 89°51'52" WEST 2,651.00 FEET TO THE SOUTHWEST CORNER OF PARCEL "A" AS SHOWN ON SAID PARCEL MAP 9208; ' THENCE LEAVING SAIDEAST-WEST QUARTER SECTION LINE ALONG THE WESTERLY LINES OF SAID PARCEL "A", THE FOLLOWIlYG SIX (6) COURSES: 1) NORTH 33°4520" WEST 128.91~FEET; Z) .NORTH 22°56'58" WEST 83.13 FEET; 3) NORTH 10°41'42" WEST 61.76 FEET; 4) NORTH 03°58'13" WEST 101.75 FEET; 5) NORTH 03°49' 18"EAST 159.00 FEET; AND 6) NORTH 30°35'37" WEST 33.48 FEET; THENCE LEAVING SAID WESTERLY LINE OF SAID PARCEL "A" ALONG THE WESTERLY LINE OF PARCEL "A", PER No. LLA 07-01 SERIES No. 2007-200949, AI,AMEDA COUNTY RECORDS THE FOLLOWING THIRTY•NINE (39) COURSES: P.119149VegalsVORDAN-AGMf-LEGALSILEGAL-0VERALI,.doe ~~~ ~~~ 19]49-]0 lOR1R008 MW/SK EXFIIBIT "A„ Page 2 of 4 1) SOUTH 66°40'50" WEST 92.39 FEET TO THE BEGINNING OF ANON-TANGENT CURVE TO THE LEFT; 2) ALONG SAID NON-TANGENT CURVE TO THE. LEFT, FROM WHICH THE' RADIUS POINT BEARS SOUTH 66°40'50" WEST, HAVING A RADIUS OF 1,100.00 FEET; THROUGH A . CENTRAL ANGLE OF OS° 19'52", FOR AN ARC DISTANCE OF 102.35 FEET; • 3) NORTH 28°39'03" WEST S8.S7 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT; 4) ALONG SAID CURVE TO THE RIGHT HAVING A RADIUS OF 80.00 FEET, THROUGH A CENTRAL ANGLE OF I 1 °4T 55' ; FOR AN ARC DISTANCE OF 16.47 FEET; TO A POINT OF REVERSE CURVATURE; S) ALONG SAID REVERSE CURVE HAVING A RADIUS OF 150.00 FEET, THROUGH A CENTRAL ANGLE OF S4°01'09", FOR AN. ARC DISTANCE OF 141.42 FEET; 6) NORTH 70°52'17" WEST 6.SS FEET TO THE BEGINNING OF A CURVE TO THE LEFT 7) ALONG SAID CURVE TO THE LEFT HAVING A RADIUS OF 120.00 FEET, THROUGH A CENTRAL ANGLE OF 19°OT43", FOR AN ARC DISTANCE OF 40.06 FEET; 8) NORTH 90°00'00" WEST 189.85 FEET TO THE BEGINNING OF ANON-TANGENT CURVE TO THE LEFT; 9) .ALONG SAID NON-TANGENT CURVE TO THE LEFT, FROM WHICH THE RADIUS POINT BEARS SOUTH 89°ST24" WEST; HAVING A RADIUS OF 886.00 FEET; THROUGH A CENTRAL ANGLE Oi+ 32°31'05", FOR AN ARC DISTANCE OF 502.85 FEET; lp) NORTH 53°02'51"EAST 195.67 FEET; 11) NORTH 28°OT47" EAST 284.00 FEET; 12) NORTH 49°41'57"EAST 122.85 FEET; TO THE BEGINNING OF A CURVE TO THE RIGHT; 13) ALONG SAID CURVE TO THE RIGHT. HAVING A RADIUS OF 42.00 FEET, THROUGH A CENTRAL ANGLE OF S9°26'40", FOR AN ARC DISTANCE OF 43.58 FEET; 14) SOUTH 70°51'23" EAST 49.05 FEET; I S) SOUTH 7S°22'09" EAST 45.89 FEET; 16) NORTH 90°00'00" EAST 58.47 FF,ET; 17) NORTH 69°08'47" EAST 31.73 FEET; 18) NORTH S8°52'28" EAST 119.88 FEET; 19) NORTH 10°4T11" WEST 268.63 FEET; • IO) NORTH 07°19'39" WEST 250.02 FEET; 2l) NORTH 20°43'33" WEST 90.89 FEET; P.V 9149UeYaIsVORDAN-AGMT-LEGALS\LEGAL-0VERALL.d°c ' 19149-10 10212008 MW/SK F,XHIBIT "A" Page 3 of 4 22) NORTH 12°41'35" WEST 30.86 FEET; 23) NORTH 00°44'30" WEST 120,97 FEET; • 24) NORTH 17°41' 12" WEST 147.19 FEET; • 25) NORTH 00°19'22" WEST 106.46 FEET; • 26) NORTH 17°50'10" EAST 64.19 FEET; 27) NORTH 02° ] 8'30" EAST 8136 FEET; 28) NORTH 16°41'10" EAST 51.40 FEET; 29) NORTH 37°18'42" EAST 65.35 FEET; 30) NORTH 21°23'28" EAST 200.71 FEET; 31) NORTH 7l°06'39" WEST 99.04 FEET; 32) NORTH 50°42'23" WEST 48.07 FEET; • 33) NORTH 21°32'10" WEST 88.4Q FEET; 34) NORTH 14°25'13" WEST I34.28 FEET; • 35) NORTH 10°57'46" WEST 96.03 FEET; • 36) NORTH 00°39'24" EAST 140.60 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT; 37) ALONG SAID CURVE TO THE RIGHT HAVING A RADIUS OF 291.02 FEET, THROUGH A CENTRAL ANGLE OF 49°58'40", FOR AN ARC DISTANCE OF 253.85 FEET; 38) NORTH•71°20'52" EAST 82.06 FEET; AND • 39) SOUTH 52°39'14" EAST 39.69 FEET; TO THE WESTERLY LINE OF PARCEL "D^ AS SHOWN ON SAID PARCEL MAP 9208; THENCE ALONG SAID WESTERLY LINE OF PARCEL "D" THE FOLLOWING TWO (2) COURSES: 1) • NORTH 48°46'28" EAST 1,739.56 FEET; 2) NORTH 00°09'11" WEST 235.96 FEET TO A •POINT ON THE QUARTER SECTION LINE OF SAID SECTION 27, SAID QUARTER SECTION LINE BEING ALSO THE SOUTHERLY LINE OF ACACIA PARTNERS II, SERIES No. 2005-037868, ALAMEDA COUNTY RECORDS, AND THE NORTHERLY LINE OF SAID PARCEL "D"; THENCE ALONG SAID QUARTER SECTION LINE SOUTH 89°40'26" EAST 1,485.76 FEET; TO SAID POINT OF BEGINNING. CONTAWING 328.58 ACRES, MORE OR LESS. P.\19149Uegi)sVORDAN-AGMI-I.1;GALSV.EGA1.-0VE1tA LL.doc ~-~ ~ a-~® 19149-10 lonlnooa Mwrsx EXHIBIT "A" Page 4 of 4 PARCEL Z BEGINNING AT THE COMMON CORNER OF SECTIONS 26, 27,34, AND 35 ALONG THE SECTION LINE COMMON TO SECTIONS 26 AND 35, SAID SECTION LINE ALSO BEING THE SOUTHERLY LINE OF THE LANDS OF MUEHLHAUSER, RECORDED IN SERIES No. 2002-097480, ALAMEDA COUNTY RECORDS, SOUTH 88°43'28" EAST 2640.61 FEET TO THE NORTH QUARTER CORNER OF SECTION 35; THENCE ALONG THE NORTH-SOUTH QUARTER SECTION LINE OF SAID SECTION 35, SAID QUARTER SECTION LINE BEING ALSO THE WESTERLY LINE OF ACACIA PARTNERS I, LLC. RECORDED IN SERIES No. 2005-037867, AL,AMEDA COUNTY RECORDS, SOUTH 00°55'27" WEST 2636.26 FEET TO THE CENTER QUARTER CORNER OF SECTION 35; THENCE ALONG THE EAST-WEST QUARTER SECTION LINE OF SAID SECTION 35, SAID QUARTER' SECTION LWE BEING ALSO THE NORTHERLY LINE OF.THE LANDS OF CROAK, RECORDED IN SERIES No. 79-229985, ALAMEDA COUNTY RECORDS; NORTH 88°4'19" WEST 2631.95 FEET TO THE WEST QUARTER CORNER OF SECTION 35; . THENCE ALONG THE COMMON SECTION LINE OF SAID SECTIONS 34 AND 35, BEING ALSO THE EASTERLY LINE OF PARCELS "C" AND "D" OF PARCEL MAP 9208 RECORDED IN BOOK 292 OF MAPS. PAGES 16-17, ALAMEDA COUNTY RECORDS; NORTH 00°44'09" $AST 2636.21 FEET TO SAID POINT OF BEGINNING. BEARINGS, DISTANCES AND AREA CALCULATION ARE BASED ON RECORD OF SURVEY No. 1675, BOOK 25 RECORD OF. SURVEYS PAGES 31-32 ALAMEDA COUNTY RECORDS. CONTAII~iII~iG 159.54 ACRES,-MORE OR LESS. ~ ' END OF DESCRIPTION. THIS DESCRIPTION IS FOR THE PURPOSE OF AN EXIiIBIT ONLY AND DOES NOT CONSTTPU'TE A LEGAL DESCRIPTION FOR THE PURPOSES OF CREATING NEW DIVISIONS OF LAND OR CONVEYANCE. I~ACKAY& somps CML ENGINEERING~IAND RANNING•IAND SUI7VE11NG 5142 FranWn Drive Suite 8, Pleasrnfon, CA 945883355 (925J 225-0690 P:\19149Vegr]sUORDAN-AGMf-LEGALStI.EGAL-0VERALL.doc l"I~ T. 2 5..~ R. 1 E. - NOTE: 6EARINGS AND DISTANCES IM D ~ H M ' WITHOUT AN ASTERISK(.) WERE TAKEN ~ _~ ~ AGICIA PARTNERS II, LLC. FROM RECORD OF SURVEY N0. 1005 27 ; 28 SERIES No. 2005-037853 .~ ACACIA PARTNERS ; APN 905-0003-014-D3 ~ ~ SERIES Na. 2005-037858 ~' ~ APN say-0028-001 ;1 PoB _--_-__.;-_____ N89°40_26'W t485.76' i PARCEL 1 --------------- ---------------------------r---- I PARCEL 2 y~o ~~ 5996. W ~ 1/4. CORNER OF ~ PM 8327 ~~~~ ~ SECTIONS 26 & 27 BK. 29$ PM P. 14-17 ~~ PARCEL 'D' '~' ~ a~i ~ ~ MIJEHLHAJSER D.S.R.S.D, j h$ ~ p]( 9208 N ~ SERIES N~. 2002-097480 i ---'` '~-~----~'• ~ HHL92 ][ PGiB-17 4,I APN 905-0003-012 ~~ 313.91( AC. =- ~ ' TRACT 7253 t ~ 'ono ~ .NOTE: BEARINGS AND DISTANCES WITH BK.263 M P.73-781 ~, PARCEL A ~ ~ AN ASTERISK(.) FOR THE NW 1/4 OF `~ _ ~v, No. LLA 07-01 z I SECTION 35 WERE TAKEN FROM ~ ~.~''-"- ~~~ •' BERTHS No. 2007-200949 RECORD OF SURVEY N0. 1675 ' i ~ .~ 14.871 AC, ~ ~ I DUBLIN ~ ~ PARCEL 'B' 27 26-__r--------- ~ •N88.43'28"W 2640.61'• ~ R A N C H ~ t ~ ~ tO ~ \ ~ ~ , ~ POB PARCEL' 2 x i \' h ~ /' ~ y DDHLIN ~ RE IIdVESTORS, LI,C ~ ~ ~ / ~~ ~' ~ ;., I ... -SERIES No. 2003-!08250 ~ ~ '`" ' ~ ' ~ ~ ROS N0. 1875 `c°v I ~ ,~ v . ~.' ~~'"""J . ~ ~ ~~' ' ? L i ~ i ~ BB25 R.0.9. PGSl -92 ~ 1 _ o °o r __ . ~ I N N JpN 905-0002-003 ~ ~ ~ v, I ~;, ~~ ~~ ' \ I 'i' I ~-' 159.54( AC. ~ ~' S i ~ ~-"-- ~ - o NW I /4 SECTION 35 ~ ~ N I ~ ; PARCEL 'C' ~ ~ ~ 7. 2 S. R: 1 E. ~ ~ ~ z ~ L:;,~ PARCEL A ~~ o o M.D,B. do M. g z `. ~ 1/4 CORNER OF zl c~ ~ a ~~ ; SECTIONS 34 ac 35 ; a ~ . _ _ N89'~152651.00' _ _ „~ •N88'43' 19"W 2631.95'• ' F1RST AMERICAN TITLE ~ CRO;t~K /~ GUARANTY CO. i SERIES No. 79-229985 SERIES No. 93388140 i APN 905-0002-002 ' APN 985-0027-006 ; APN 905-0002-002-01 (JORDAN RANCHI ~ ' LEGEND: ---- BOUNDARY LINE 0' 500' ~ 0~~' 2000' ----------'- EXISTING LOT UNE " POB POINT OF BEGINNING ~~~+ i PAGE 1 OF 1 ~~~~ ~ ~O nos FALCON VILLAGE PROPERTY CMS ENaNEERINC•IAND PUNNINC•UWD SURVEYING Pleoaonton, CA f9?51 ~x_nean ~~~ CITI OF DUBLIN COUNTY OF AWJEDA CALIFORNIA l`?8~~~~ EXHIBIT 2 Diagram of the First Phase, the Subsequent Phase, and the Final Phase of the Project .- -- .. ~ r .- - _~ ~~~ Positano Part I of First Phase ® -- - of First Phase se ----~ -__J ~D-17'2008 i5:00:~2 mmcdeilcn P;\~g~sg\exh~Gb\Erh-POSitono Proper,y Description Suosequenl Phose.dwg ~~, ~~ EXHIBIT 3 Form of Regulatory Agreement for Anderson Residential Project DRAFT 10/15/2008 L6t~j RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder's use AFFORDABLE HOUSING REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS by and between Dublin RE Investors, L.L.C., a California limited liability company and the City of Dublin DRAFT 10/15/2008 ~~~~ ~~~ This Affordable Housing Regulatory Agreement and Declaration of Restrictive Covenants (this "Agreement") is entered into effective as of , 2008 ("Effective Date") by and between the City of Dublin, a municipal corporation ("City") and Dublin RE Investors, L.L.C., a California limited liability company ("Developer"). City and Developer are hereinafter collectively referred to as the "Parties." Recitals A. Chapter 8.68 of the Dublin Zoning Ordinance ("Inclusionary Zoning Ordinance") 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 prior to the issuance of building permits. The Regulations were adopted pursuant to Strategy I.B. of the City's General Plan Housing Element, the purpose of which is to create affordable housing opportunities in the City of Dublin for very low-, low- and moderate-income households. B. The City of Dublin adopted the Inclusionary Zoning Ordinance recognizing that the cost of new housing is so high that persons with very tow-, low- and moderate- incomes are increasingly unable to locate affordable housing in the City. The purpose of the Inclusionary Zoning Ordinance is to achieve a balanced community with housing available at all income levels. C. Accordingly, the Inclusionary Zoning Ordinance generally requires that residential projects with 20 or more units/lots contain at least 12.5% very low-, low- and moderate-income units/lots. The Inclusionary Zoning Ordinance requires that the units be constructed in the following proportions: 30% very low-income, 20% low-income, and 50% moderate income. In lieu of constructing 40% of the inclusionary units that the Inclusionary Zoning Ordinance would otherwise require, the Inclusionary Zoning Ordinance authorize developers to pay a fee currently set by the City through June 30, 2009 at $91,916 per unit required but not built. If fees are paid in lieu of construction, developers are still required to construct 60% of the obligation. D. Developer is the owner of certain real property in the City of Dublin generally located east of Fallon Road, and Developer and its successor desire to construct a residential project on the Property that consists of 1,043 for-sale units ("Positano Project"), which is subject to the Inclusionary Zoning Ordinance. F. Based on 1,043 units, the Developer's obligation under the Inclusionary Zoning Ordinance is 130 units (1,043 times 0.125 equals 130.375), and Developer is permitted to pay fees in lieu of construction to satisfy the obligation as to 52 units (130 times 0.4 equals 52), leaving amust-build obligation of 78 inclusionary units. G. Pursuant to the Inclusionary Zoning Ordinance, the City Council may wholly or partially waive the requirements of the Inclusionary Zoning Ordinance and approve alternate methods of compliance. 1153511-3 2 Anderson Project Regulatory Agreement DRAFT 10!15/2008 ~ $ ~ .~`~ H. Developer has proposed an alternate method to satisfy its 130 unit inclusionary unit obligation for the Positano Project by, among other things, constructing 78 off-site affordable rental units, and this Agreement concerns those units. I. Developer has received entitlements from the City to build a rental apartment project ("Project" and sometimes referred to as "Anderson Project") on certain real property located at in the City of Dublin and more particularly described on Exhibit A attached hereto and incorporated herein by this reference ("Property"). The Project consists of twenty-six (26) market-rate rental units (one of which is a manager's unit), seventy-eight (78) affordable restricted units that are designed to satisfy a portion of the inclusionary housing obligations of the Positano Project and four (4) affordable restricted units that satisfy the inclusionary housing obligations of the Project. The Anderson Project constitutes the 78 off-site affordable rental units proposed by Developer to satisfy a portion of its affordable housing obligations for the Positano Project. J. The Parties have entered into a Subsequent Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units ("Positano Agreement") to set forth the terms and conditions for Developer satisfying the inclusionary housing obligations for the Positano Project. K. Pursuant to the Positano Agreement, and to satisfy the inclusionary housing obligations as to the Anderson Project, the Parties have agreed to enter into and record this Agreement in order to satisfy the conditions described in the foregoing Recitals. The purpose of this Agreement is to regulate and restrict the occupancy and rents of the Project's Restricted Units (defined below) for the benefit of the Project occupants. The covenants in this Agreement are intended to run with the land and be binding on Developer and its successors and assigns for the full term of this Agreement. NOW, THEREFORE, in satisfaction of the requirements of Chapter 8.68 of the Dublin Municipal Code and the Positano Agreement, and in consideration of the City's approval of the Positano Project and the Anderson Project, Developer and City for themselves and their respective successors and assigns hereby agree as follows: 1. Definitions and Interpretations. The following terms have the meanings set forth in this Section wherever used in this Agreement or the attached exhibits. "Area Median Income" or "AMI" means the area median income for Alameda County, Califomia, adjusted for household size, determined periodically by the California Department of Housing and Community Development ("HCD") as published in Section 6932 of Title 25 of the Califomia Code of Regulations ("Regulations") or successor provision published pursuant to California Health and Safety Code Section 50093(c). If HCD ceases to make such determination, Area Median Income shall be the median income applicable to Alameda County, with adjustments for household size, 1153511-3 3 Anderson Project Regulatory Agreement DRAFT 1 011 512 0 0 8 ~ ~~ ~~~ as determined from time to time by the U.S. Department of Housing and Urban Development ("HUD") pursuant to the United States Housing Act of 1937 as amended, or such other method of median income calculation applicable to the City of Dublin that HUD may hereafter adopt in connection with such Act. "Eligible Household" means a household whose income upon initial occupancy does not exceed the maximum income level for Very-Low Income, Low-Income or Moderate-income, as applicable, as specified in Section 2 and Exhibit B and who is otherwise eligible to rent a Restricted Unit. "Low-Income" means an annual gross income that is less than or equal to the lesser of (i) maximum income level for households of "Lower Income" as determined periodically by HCD on the basis of gross annual household income, adjusted for actual household size and other factors and published in the Regulations for Alameda County, or (ii) 80% of AMI, adjusted for household size as published in the Regulations. If HCD should cease making such determination, "Low-Income" shall be defined as not greater than 80% of Area Median Income, adjusted for household size and other factors as determined by HUD. If both HCD and HUD cease to make such determinations, City in its reasonable discretion may designate another definition of "Low-Income" used by any other federal or state agency so long as such definition is no more restrictive than that set forth herein. "Moderate-Income" means an annual gross income that is less than or equal to the lesser of (i) the maximum income level for households of "Moderate Income" as determined periodically by HCD on the basis of gross annual household income, adjusted for actual household size and other factors and published in the Regulations for Alameda County, or (ii) 120% of Area Median Income, adjusted for household size as published in the Regulations. If HCD should cease making such determination, "Moderate-Income" shall be defined as not greater than 120% of Area Median Income, adjusted for household size and other factors as determined by HUD. If both HCD and HUD cease to make such determinations, City in its reasonable discretion may designate another definition of "Moderate-Income" used by any other federal or state agency so tong as such definition is no more restrictive than that set forth herein. "Project" means the development and construction of 108 two-bedroom units on the Property, which consists of 26 market-rate units (including a manager's unit) and 82 Restricted Units, as defined below. "Property" means that certain real property located at in the City of Dublin and more particularly described in Exhibit A attached hereto and incorporated by this reference. "Qualifying Rent" means a monthly rent, less a utility allowance as specified by the Housing Authority of Alameda County, that shall not exceed: (i) for units that are restricted for rental to Very Low-Income households, one-twelfth of thirty percent (30%) of fifty percent (50%) of AMI, adjusted for household size, as published in the 1153511-3 4 Anderson Project Regulatory Agreement DRAFT 10/1512008 `'~ ~ ~~ ~~~ Regulations for Alameda County, (ii) for units that are restricted for rental to Low- Income households, one-twelfth of thirty percent (30%) of sixty percent (60%) of AMI, adjusted for household size, and (iii) for units that are restricted for rental to Moderate- Income households, a monthly rent which does.not exceed one-twelfth of thirty percent (30%) of sixty percent (110%) of AMI, adjusted for household size. "Restricted Unit" means atwo-bedroom dwelling unit that is reserved for occupancy at a Qualifying Rent by an Eligible Household in accordance with and as set forth in Section 2 and Exhibit B. °Transfer" means any sale, agreement to sell, assignment, encumbrance, hypothecation, conveyance, license, lease (other than the leasing of commercial space or individual residential units within the Project) or transfer of the whole or any part of Developer's interest in the Property or the Project, or any part thereof, or change in the ownership structure of Developer, including the sale of any general or limited membership interests, or the removal of any general member ' "Very Low-Income" means an annual gross income that is less than or equal to the lesser of (i) the maximum income level for households of "Very Low Income" as determined periodically by HCD on the basis of gross annual household income, adjusted for actual household size and other factors and published in the Regulations for Alameda County, or (ii) 50% of Area Median Income, adjusted for household size as published in the Regulations.. If HCD should cease making such determination, "Very Low-Income" shall be defined as not greater than 50% of Area Median Income, adjusted for household size and other factors as determined by HUD. If both HCD and HUD cease to make such determinations, City in its reasonable discretion may designate another definition of "Very Low-Income" used by any other federal or state agency so long as such definition is no more restrictive than that set forth herein. 2. Develoaer's Comaliance with Affordable Housing Obligation Developer hereby covenants and agrees, for itself and its successors and assigns, that at least eighty-two (82) dwelling units within the Project shall be Restricted Units so as to satisfy all of Developer's obligations under the Inclusioriary Zoning Ordinance and requirements set forth herein. Developer 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 Developer covenants that it shall not enter into any agreement that is inconsistent with such restrictions without the express written consent of City. Notwithstanding the foregoing or anything to the contrary contained herein, if the terms of financing for the Project require greater affordability restrictions than those imposed hereby, the requirements of such other financing shall prevail for the term thereof. 2.1 Occupancy of Restricted Units. In perpetuity, occupancy of the Restricted Units shall be limited to Eligible Households in the number and in accordance with the income limitations set forth in Exhibit B attached hereto and incorporated by this reference. The income levels and other quaycations of applicants for 1153511-3 5 Anderson Project Regulatory Agreement DRAFT 10/15/2008 Restricted Units shall be certified pursuant to Section 3 of this Agreement. In the event that recertification of tenant incomes indicates that the number of Restricted Units actually occupied by Eligible Households falls below the number reserved for each respective income group as specified in Exhibit B, Developer shall rectify the condition by renting the next available Unit to Eligible Household(s) from that income group until the required income mix is achieved. Notwithstanding the foregoing, no tenant qualifying for a Restricted Unit shall be denied continued occupancy of a unit in the Project because, after admission, such tenant's adjusted income increases to exceed the qualifying limit for such tenant. If a tenant who at initial occupancy qualified as Very Low, Low- or Moderate-Income, such tenant shall be treated as continuing to be of Very-Low, Low- or Moderate-Income, as applicable, so long as the tenant's income does not exceed 140% of the applicable income limit. Such disqualified tenant (i.e., one whose income exceeds 140% of the applicable income limit) shall be deemed to qualify as a Very Low-, Low-, or Moderate- Income tenant, as applicable, provided that the next available vacant unit of comparable or smaller size as the unit with the disqualified tenant is rented to a tenant who qualifies at the applicable income level, after which the unit with the disqualified tenant will no longer qualify as a Restricted Unit. 2.2 Rents restricted for Affordable Units. Rents for Restricted Units shall be limited to Qualifying Rents. Notwithstanding the foregoing, no tenant qualifying for a Restricted Unit shall be denied continued occupancy of a unit in the Project because, after admission, such tenant's adjusted income increases to exceed the qualifying limit for such Restricted Unit. A tenant who at initial occupancy qualifies for Moderate Income shall be treated as continuing to be of Moderate Income, as applicable, provided that the tenant's income does not exceed 140% of the applicable income limit. 2.3 Inclusionary Unit Design, Location and Size The Restricted Units shall be of the same general design and appearance as the other market-rate units in the Project approved by the Planning Commission and the City. Consistent with Section 8.68.030.E of the Inclusionary Zoning Ordinance, the Restricted Units shall initially be dispersed within the Project and shall initially be located as specified in a diagram approved by the City prior to completion of construction of the Project. The Diagram of Location of Inclusionary Units, attached hereto as Exhibit C. shows the location of the Restricted Units as proposed by the Developer. Tenants of Restricted Units shall have access to all common facilities of the Project equal to that of tenants of dwelling units in the Project which are not Restricted Units. 2.4 No Condominium Conversion. Developer shall not convert the Property or the Project to condominium or cooperative ownership or sell condominium or cooperative conversion rights to the Property or the Project during the term of this Agreement, other than in conformity with the City's Condominium Conversion Regulations set forth in Chapter 8.54 of the Dublin Zoning Ordinance. 1153511-3 6 Anderson Project Regulatory Agreement .~ DRAFT 10/15/2008 2.5 Non-Discrimination: Compliance with Fair Housing Laws There shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, religion, creed, sex, sexual orientation, marital status, familial status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or the Project, nor shall Developer or any person claiming under or through Developer 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 Project. Developer shall each ensure that language prohibiting such party or its successors and assigns with respect to the Project and the Property. Developer shall comply with state and federal fair housing laws in the marketing~and rental or the units in the Project. 3. Reporting Requirements. 3.1. Tenant Certification. Developer or its authorized agent shall obtain from each household prior to initial occupancy of each Restricted Unit, and on every anniversary thereafter, written documentation containing all of the following in such format and with such supporting documentation as City may reasonably require: (a) Number of people in the household; and (b) Total household income. Developer shall retain such written documentation for not less than three (3) years, and upon City's request, shall make the originals available for inspection by City and shall provide copies of such certificates to City. Developer or its authorized agent shall require each Eligible Household to verify such written documentation. 3.2. Annual Report; Inspections. Developer shall submit an annual report ("Annual Report") to the City in conformity with the requirements of Section 8.68.0508 of the Inclusionary Zoning Ordinance, together with a certification that the Project is in compliance with the requirements of this Agreement. The Annual Report shall, at a minimum, include the following information for each Affordable Unit in the (...) ,Project: (i) unit number; (ii) number of bedrooms; ni current rent and other charges; (iv) dates of any vacancies during the previous year; (v) number of people residing in the unit; (vi) total household income of residents; (vii) documentation of source of household income; and (viii) the ethnicity of the household (only if required by Project financing sources). Upon City's request, Developer shall include with the Annual Report, an income recertification for each household, documentation verifying tenant eligibility, and such additional information as City may reasonably request from time to time in order to show compliance with this Agreement. The Annual Report shall conform to the format described in Exhibit 8 of the City's "Layperson's Guide to the Inclusionary Zoning Ordinance Regulations," more particularly described in Exhibit D attached hereto and incorporated herein by reference. Developer shall permit representatives of City to enter and inspect the Property and the Project during 1153511-3 7 Anderson Project Regulatory Agreement DRAFT 10/15/2008 i;r~{ ~~~ reasonable business hours in order to monitor compliance with this Agreement upon 24 hours advance notice of such visit to Developer or to Developer's management agent. 4. Term of Agreement. perpetuity. 4.1 Term of Restrictions. This Agreement shall remain in effect in 4.2 Effectiveness Succeeds Convevance of Prooerty This Agreement shall remain effective and fully binding for the full term hereof regardless of any sale, assignment, transfer, or conveyance of the Property or the Project, unless this Agreement is terminated earlier by City in a recorded writing. 4.3 Reconveyance. Upon the termination of this Agreement, the Parties 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. Developer hereby subjects its interest in the Property and the Project to the covenants and restrictions set forth in this Agreement. The City and Developer 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 Developer and City, regardless of any sale, assignment, conveyance or transfer of the Property, the Project or any part thereof or interest therein. Any successor-in-interest to Developer, including without limitation any purchaser, transferee or lessee of the Property or the Project (other than the tenants of the individual dwelling units within the Project) 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 the Project 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, Developer 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. Developer 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 and the Project in favor of City. 1153511-3 8 Anderson Project Regulatory Agreement DRAFT 10h5/2008 The Parties hereby declare that is their understanding and intent that the burden of the covenants set forth herein touch and concem the land in that they restrict the use of the Property. The Parties further declare that it is their understanding that the benefit of such covenants touch and concem the land by enhancing and increasing the enjoyment and use of the Project by households of moderate-income. The covenants, conditions and restrictions hereof shall apply uniformly to the Property in order to establish and carry out a common plan for the use, development and improvement of the Property. 6. Property Manaaement; Repair and Maintenance• Marketina 6.1 Management Responsibilities. Developer shall be responsible for all management functions with respect to the Property and the Project, 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 or the Project. 6.2 Management Entity. City shall have the right to review and approve the qualifications of the management entity proposed by Developer for the Project. The City hereby approves as the initial management entity for the Project. The contracting of management services to a management entity shall not relieve Developer of its primary responsibility for proper performance of management duties. 6.3 Repair, Maintenance and Security. Throughout the term of this Agreement, Developer shall at its own expense, maintain the Property and the Project 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, Developer agrees to maintain the Project and the Property (including without limitation, the residential units, common meeting rooms, 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 or at the Project. Developer shall prevent and/or rectify any physical deterioration of the Property and the Project and shall make all repairs, renewals and replacements necessary to keep the Property and the improvements located thereon in good condition and repair. Developer shall provide adequate security services for occupants of the Project. 6.3.1 City's Riaht to Pertorm Maintenance. In the event that Developer breaches any of the covenants contained in Section 6.3, and such default continues for a period of ten (10) days after written notice from City (with respect to graffiti, debris, and waste material) or thirty (30) days after written notice from City (with respect to landscaping, building improvements and general maintenance), then City, in 1153511-3 9 Anderson Project Regulatory Agreement _ ,,. , DRAFT 10/15/2008 ~ ~ ~-~~ addition to any other remedy it may have under this Agreement or at law or in equity, shall have the right, but not the obligation, to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and the landscaped areas on the Property. All costs expended by City in connection with the foregoing, shall constitute an indebtedness secured by the Deed of Trust, and shall be paid by Developer to City upon demand. All such sums remaining unpaid thirty (30) days following delivery of City's invoice therefor shall bear interest at the rate of 10% per annum. 6.4 Inspection. Developer shall permit representatives of City to enter upon and inspect the Property and the Project during reasonable business hours upon twenty-four (24) hours advance notice to Developer or Developer's management agent. 6.5 Marketingt and Management Plan. As soon as practicable following completion of Project construction, Developer shall rent the Restricted Units to Eligible Households. Developer shall give priority for Restricted Units to Eligible Households in accordance with the Marketing and Management Plan described below and the selection criteria specified in Paragraph D of Section 8.68.050 of the City's Inclusionary Zoning Ordinance, unless compliance with such criteria is prohibited by state or federal sources of financing for the Project or state or federal law. Not later than 180 calendar days following the issuance of the .first building permit for the Project, Developer shall submit for City review and approval, a plan for marketing and managing the Property ("Marketing and Management Plan"). The Marketing and Management Plan shall address in detail how Developer plans to market the Restricted Units to prospective Eligible Households in accordance with fair housing laws and this Agreement, Developer's tenant selection criteria, and how Developer plans to certify the eligibility of Eligible Households. The Plan shall also describe the management team and shall address how the Developer and the management entity plan to manage and maintain the Property and the Project. The Plan shall include the proposed management agreement and the form of rental agreement that Developer proposes to enter into with Project tenants. Developer shall abide by the terms of the Marketing and Management Plan in marketing,. managing, and maintaining the Property and the Project, and throughout the term of this Agreement, shall submit proposed modifications to City for its review and approval. 6.6 Approval of Amendments. If City has not responded to any submission of the Management and Marketing Pian, the proposed management entity, or a proposed amendment or change to any of the foregoing within 30 days following City's receipt of such plan, proposal or amendment, the plan, proposal or amendment shall be deemed approved by City. 6.7 Fees, Taxes, and Other Levies. Developer shall be responsible for payment of all fees, assessments, taxes, charges, liens and levies, including without limitation possessory interest taxes, if applicable,. imposed by any public authority or utility company with respect to the Property or the Project, and shall pay such charges 1153511-3 10 Anderson Project Regulatory Agreement DRAFT 1 011 512 0 0 8 •~ prior to delinquency. However, Developer shall not be required to pay any such charge so long as (a) Developer is contesting such charge in good faith and by appropriate proceedings, (b) Developer maintains reserves adequate to pay any contested liabilities, and (c) on final determination of the proceeding or contest, Developer immediately pays or discharges any decision or judgment rendered against it, together with all costs, charges and interest. 6.8 Insurance Coverage. Throughout the term of this Agreement Developer shall maintain at Developer's expense comprehensive.general liability insurance issued by a carrier licensed by the State of California with a Best's rating of not less than A:VII providing aggregate limits of not less than Two Million Dollars ($2,000,000), providing coverage for bodily injury, death and property damage, naming the Indemnified Parties (as defined in Section 1 Q) as additional insureds and providing for notice to City prior to cancellation or reduction in coverage. Prior to issuance of building permits for the Project, Developer shall provide City with evidence of such coverage in such form as City may reasonably request. 6.9 Property Damaae or Destruction. If any part of the Project is damaged or destroyed, Developer shall repair or restore the same, consistent with the occupancy and rent restriction requirements set forth in this Agreement. Such work shall be commenced within 120 days after the damage or loss occurs and shall be completed within one year thereafter, provided that insurance proceeds are available to be applied to such repairs or restoration within such period and the repair or restoration is financially feasible. During such time that lenders or low-income housing tax credit investors providing financing for the Project impose requirements that differ from the requirements of this Section the requirements of such lenders and investors shall prevail 7. Recordation: No Subordination. This Agreement shall be recorded in the Official Records of Alameda County. Developer hereby represents, warrants and covenants that, 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 or the Project. If at the time this Agreement is recorded, any interest, lien, or encumbrance has been recorded against the Project in position superior to this Agreement, upon the request of City, Developer 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. 8. Restrictions on Transfer and Encumbrance. 8.1 Restrictions on Transfer. (a) During the term of this Agreement, except as permitted pursuant to subparagraph (b) below, Developer shall not make or permit the occurrence 1153511-3 11 Anderson Project Regulatory Agreement DRAFT 10/15/2008 of any Transfer of the Project or the Property without the prior written consent of the City. (b) City shall not unreasonably withhold its consent to the Transfer of the Project, provided that (i) the Project is and shall continue to be operated in compliance with this Agreement; (ii) the transferee expressly assumes all obligations of Developer imposed by this Agreement; (iii) the transferee executes all documents reasonably requested by the City with respect to the assumption of the Developer's obligations under this Agreement; and (iv) either (1) the transferee has at least three years' experience in the ownership, operation and management oflow-income senior rental housing projects of similar size to that of the Project, without any record of material violations of nondiscrimination provisions or other state or federal laws or regulations applicable to such projects, or (2) the transferee agrees to retain a property management firm with the experience and record described in subclause (1). 8.2 Encumbrances. Developer agrees to use best efforts to ensure that any deed of trust secured by the Project shall contain each of the following provisions: (i) the holder of such deed of trust shall use its best efforts to provide to City a copy of any notice of default issued to Developer concurrently with provision of such notice to Developer (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 Developer within the same period of time provided to Developer for such cure, extended by an additional thirty (30) days. Developer agrees to provide to City a copy of any notice of default Developer receives from any Third- Party Lender within three (3) business days following Developer's receipt thereof. 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 Project or the Property, and the purchaser at any trustee's sale or foreclosure sale shall not be liable for any violation of any provision hereof occurring prior to the acquisition of title by such purchaser. Such purchaser shall be bound by and subject to this Agreement from and after such trustee's sale or foreclosure sale. Promptly upon determining that a violation of this Agreement has occurred, City shall give written notice to the holders of record of any mortgages or deeds of trust encumbering the Project or the Property that such violation has occurred. 9. Default and Remedies. 9.1 Events of Default. The occurrence of any one or more of the following events shall constitute an event of default hereunder ("Event of Default"): (a) The occurrence of a Transfer in violation of Section 8 hereof, and the failure of Developer to rescind such Transfer within 30 days following written notice from City or such longer period as City may agree upon in writing. 1153511-3 12 Anderson Project Regulatory Agreement DRAFT 10/75/2008 (b) Developer's failure to maintain insurance on the Property and the Project as required hereunder, and the failure of Developer to cure such default within 10 days. (c) Subject to Developer's right to contest the following charges, Developer's failure to pay taxes or assessments due on the Property or the Project or failure to pay any other charge that may result in a lien on the Property or the Project, and Developer's failure to cure such default within 10 days. (d) Developer's default in the performance of any term, provision or covenant under this Agreement or under any other City Document (other than an obligation enumerated in this Subsection 9.1 ), and unless such provision specifies a shorter cure period for such default, the continuation of such default for ten (10) days in the event of a monetary default or thirty (30) days in the event of a non- monetarydefault following the date upon which City shall have given written notice of the default to Developer, or if the nature of any such non-monetary default is such that it cannot be cured within 30 days, Developer's failure to commence to cure the default within thirty (30) days and thereafter prosecute the curing of such default with due diligence and in good faith, but in no event longer than 120 days from receipt of the notice of default. 9.2 Remedies. If within the applicable cure period, Developer fails to cure a default or fails to commence to cure and diligently pursue completion of a cure, as applicable, or if a cure is not possible, City may proceed with any of the following remedies: (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. 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. Notwithstanding the insurance coverage required hereunder, Developer shall defend, 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) which an 1153511-3 13 Anderson Project Regulatory Agreement ~. r DRAFT 10/15I20G Indemnified Party may incur as a result of (1) Developer's failure to perform any obligation as and when required by this Agreement; (2) any failure of Developer's representations or warranties to be true and complete in all material respects when made; or (3) any actor omission by Developer, or any of Developer's contractors, subcontractors, agents, employees, licensees or suppliers with respect to the Projector the Property, except to the extent that such losses are caused by the gross negligence or willful misconduct of such Indemnified Party. Developer shall pay immediately upon an Indemnified Party's demand any amounts owing under the indemnity provided under this Section. The duty of Developer to indemnify includes the duty to defend the Indemnified Party in any court action, administrative action, or other proceeding brought by any third party arising in connection with the Project or the Property with counsel reasonably approved by City. Developer's duty to indemnify the Indemnified Parties 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 Developer 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: (i) personal delivery, in which case notice is effective upon delivery; (ii) 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; (iii) 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; (iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly 1153511-3 14 Anderson Project Regulatory Agreement DRAFT 10115/2008 ~ ~' ~ ~~,. 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 100 Civic Plaza Dublin, CA 94568 Attention: City Manager Facsimile: (925) 833-6651 Developer: Dublin RE Investors 4155 Blackhawk Plaza Circle, Suite 201 Danville, CA 94506 Attention: Jeff Lawrence Facsimile: (925) 648-5700 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-Ventures. 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 Agency. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the Agency 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 governing board of the Agency. 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 Developer 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 Developer or its successor or for any obligation of the City under this Agreement. 11.8 Headings; Construction. The headings of the sections and paragraphs of this Agreement are for convenience only and shall not be used to interpret this Agreement. The language of this Agreement shall be construed as a whole according to its fair meaning and not strictly for or against any Party. 11.9 Time is of the Essence. Time is of the essence in the pertormance of this Agreement. 1153511-3 15 AnderSOn Project Regulatory Agreement 4~ t ~ DRAFT 10115/2008 t~~ ~Po~~ 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. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of Alameda County, California or in the Federal District Court for the Northern District of California. 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, together with the Agency Documents 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. 1153511-3 16 ~ Anderson Project Regulatory Agreement DRAFT 10/15/2008 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN DUBLIN RE INVESTORS, LLC a California limited liability company By: Joni Pattillo, City Manager By: Braddock and Logan Services, Inc. a Califomia corporation Its Manager Attest: Caroline Soto, City Clerk By: Name: Its: Approved as to form John Bakker, City Attorney 1153511-3 17 Anderson Project Regulatory Agreement DRAFT 10/15/2008 EXHIBIT A Property Description DRAFT 10/15/2008 ~~~ ... Exhibit B OCCUPANCYAND RENT RESTRICTIONS Restricted Unit Number of Maximum Initial Maximum Type Required Income Limit* Affordable Rent Restricted Units 2-Bedroom 24 VLI 50% of AMI 30%x50% of AMl 17 LI 80% of AMI 30% x 60% of AMI 41 MOD 120% of AMI 30% x 110% of AMI Total Restricted 82 Units Total 26 Unrestricted Units Total Project Units 108 AMI =Area Median Income VLI =Very Low-Income LI = Low Income MOD =Moderate-Income *Maximum Initial Income Limit: Maximum income for a household to qualify for initial occupancy in the specified Restricted Unit is established annually by HCD in the Regulations (Section 6932 of Title 25 of the California Code of Regulations) and may differ from the stated percentage of AMI. DRAFT 10H5/2008 EXHIBIT C n._, .,., ,.:~ ; ~ Diagram of Location of Inclusionary Units DRAFT 10/15/2008 EXHIBIT D ANNUAL REPORT FORM (Attach Form. ) Zoe ~, ago 1153511.2 ~v~~~~~~ EXHIBIT 4 Multifamily GreenPoint Checklist Multifamily GreenPoint Checklist ~ Build It Careen Multifamily GreenPoint Rated Checklist v1.7 The GreenPoint Rated checklist tracks green features incorporated into the home. The j--~ J c~;.- ,,.. . , minimum requirements for a GreenPoint Rated home are: Eam a total of 50 points or more; _ Current Point Total ~~0 l ~ ' obtain the followi minimum rag points per category: Community (6), Energy (30), Indoor Air -"-~~----------- --• -- ! Quality/Health (5), Resources (6), and Water (3); and meet the prerequisites 6.1.a (50% construction waste diversion), A.8 (exceed Title 24 requirements by 15%), C.10.a (3-year subcontractor guarantee and 20-year manufacturer warranty for shingle roofing), and F.1 (incorporate Green Points checklist in blueprints). Participation in GreenPoint Rated requires the rating to be submitted to Build It Green by a Certified GreenPoint Rater. To participate in the GreenPoint Rated Program, the project must enroll in the GreenPoint Rated Program through Build It Green and a Certified GreenPoint Rater completing the third party verification. Build It Green is a non-profit organization providing the GreenPoint Rated program as a public service. Build It Green encourages local governments to leverage program resources to suppo building practices listed below are described in the GreenPoint Rated Multifamily Rating Manual. The MuftifamilyGreen Building Guidelines are also a great resources, available at wvvw.builditgreen.org. Enter Total Conditioned Floor Area of the Project: 10 000 Enter Total Non-Residential Floor Area of Project: 5 000 Percent of Project Dedicated to Residential Use 50'/. ENTER PROJECT NAME ~ ~ E ~ ~ 0 E V W a ` c n ~ ~ 3 1. Infill Sites '- • - •~ a. Project is Logted Within an Urban Growlh Boundary 8 Avoids Environmentaly Sensitive Sites o 1 b. Pr jed Indudes the Redeveopment of At Leest One Existing Buikfing c. Housing Density of 15 Units Per Acre or More (1 pt for every 5 u/a greater then 15 u/a) Enter Project 0 1 - '~ ~~ `""-'""-"' '~"~~-"- Density Number (in Units Per Acre) ~ 10 d. Locate Within Existing Community that has Sewer Line 8~ Utllities in Place e. Project Redevelops a Brownfield Site or is Designated a Redevelopment Area b a Cit i ._._ ~ - _` -~ "" '"~ - ~ - '~ y y ~..~nc naa , cvcatuw i nwcas •a~, un i~ ,auc w ncynvv~ uvw .~o, vn.oa ~ ~ , , rv, v v, ww~c, c ~ w w~ rv 1 1) Bank 2) Place of Worship 3) Full Scale Grocery/Superman ~-"..__._.~.._.. "___ ._.__.. __...-_._...__ 4) Day Care 5) Cleaners 6) Fire Station 7) Hair Cara 8) Hardware 9) Laundry 10) Library 11) Medigl/Dental 12) Senior Care Fadlity 13) Public Park 14) Pharmacy 15) Post Office 16) Restaurant 17) School 18) After School Programs i 19) Commercial Office 20) Community Center 21) Theater/Entertainment 22) Convenience Store Where Meat 8 Produce are Sold. 5 or more services wthin 1/2 _---_ --------.._~___--... 10 or more services within 1!2 1 g. Development is Logted within 1/2 Mile of a Major Transit Stop. 1 h. Reduced Parkin Ca 9 pacify: 2 _...__._...__..-....._....-_._____._..._-__... -- Less than 1.5 Parking Spaces Per Unit - _ Less than 1.0 Parking Spaces Per Unit ~ 1 _ a. At least 2% of Deve ment Floors ace Su ~°- - -- - --• -- --- ~P p pports Mixed Use (Non-Residential Tenants) ~ 1 b. Half of Above Non-Residential Floorspace is Dedicated to Residents of the Development ~ 1 - __-.. ..~.._ _._. _.._ - --- ----- .__... -- ---- _. _.._-_ ----___~___M... --.._---_.___.. ___._. _ _.-----_. __...---- ...._._-. 3. Building Placement a Orientation a. Protect Soil & Existing Plants & Trees -- 4. Design for Walking & Bicycling .~~ -.___.._._._ _.-._ A ._._..._.__.!__._~..____.__._~_. a. Sidewalks Are Physically Separated from Roadways 6 Are 5 Feet Wide j-" ~ "-""-- b. Traffic Calming Strategies Are Installed by the Developer ~ 1 c. Provide Covered & Secure Bicyde Storage for 15% of Residents 1 _d. Provide Secure Bicycle Storage for 5% of Non-Residential Tenant Employees 8 Visitors ~ 1 5. Soebl Gatharina Places - a. Outdoor Gathering Places for Residents (Average of 50 sf Per Unit Cr More) i •--_.._~._._ -._. _.___ __ __.._ . _._ 1 b. Outdoor Gathering Places Provide Natural Elements (For compact sites oMy) 1 6. Design for Safety and Natural Surveillance ~---"-_ _-~- "`--' -__ ._- _ ..--_. -______~.,_____;___.,_,_ .... MF GreenPoint Checklist 2005 Edition v.2 Page 1 of 6 ENTER PROJECT' NAME a. All Main Entrances to the Building and Site are Prominent and Visible from the SUeet b. Residence Entries Have Yews to Callers (Windows or Double Peep Holes) 8 Can Be Seen A~ ~ .; ai o,~! Ni W Q I ~ ---1 I I ~. Lan cap ng No !s the landscape area <1OSG of the iota! site area? (Yes/No) a. Plant Specles will Require Shearing b. No Plantings are Listed on the Invasive Plant Inventory by the California Invasive Plant Council ~~ 1 - r---_______.___.._.~---- --___. c. Specify Drought-tolerant California Natives, Mediterranean or Other Appropriate Species j t .~.. d. Create Drought Resistant Soils: _ _ i. Mulch All Planting Beds to a Depth of 2 Inches or Greater as Per Local Ordinance 1 ii. Amend with 2 Inches of Compost or as per Soil Analysis to Reach 3.5% Soil Organic Matter j t e. Design 8 Install High-Efficiency Irrgation System ~----------------•____ ~__ ___, i. Speclfy Smart (Weather-Based) Irrigation Controllers t-`--'-` t "1 ii. Specify Drlp, Bubblers or Low-Flow Sprinklers j t. Group Plants by Water Needs (Hydrozones) in Planting Plans & Identify Hydrozones on Irrigation Plan! 1- j g. Minimize Turf in Landscape Installed by Builder "~~" i. Do Not Specify Turt on Sbpes Exceeding 109'° or in Areas Less Than 8 Feet Wide ~ I 11. LCat II~PII JJN VI NI ~.OIIYJW`/GV NCO w .~Ncvlrou 00 IYII /v1LI /111 1 YII IIGJ Y~OICI 1\Ct~UI1 p111C11~ ~~^_~-~__-_--_------.__._.~. j c=_T.n Tau re~n~u.._____..._._._ _!. _._..____....._- __~-----___~...._._~ 8. Building Performance Exceeds Title 24 - -_._-_..__ _ ____.__....r_______ _ _-_____ Enter the Percent Above title 24 for Residential and Non-Residentia! Portions o/the Project. ~ 0°/. a. Residences: 2 points for Every 1 % Above Title 24 (15% Required) ~ -j 0°/. b. Non-Residential Space: 2 Points for Every 1 % Above Title 24 -Not Required I 0 9. Cool Ske ~-----..~.....-..--- ._-_.._i a. At least 30% of the Site Includes Cool Site Techniques ~-j ____ ^~ 10. Adaptable Buildlnas --~`~' ~""_- .-._ _- a. Include Universal Design Principles in Units 50% of Units 80% of Units b. Live/Work Units Include A Dedicated Commercial Entrance 11. Aftordabllfty -- - a. APercentage of Units are Dedicated to Households Making 80°~ or Less of AMI 10% of All Units ('- ~ --' -"-- 20% i 309'0 I" 1 1 50% or More 1 b. Development Includes Multiple Bedroom Units (At least 1 Unit with 3BR or More at or Less Than 80°,6 2 _._T_...-. -~_.. -.__~.~ _ ___,__.___L .-._.._._._...._ 1. Construction b Demolklon Wash Management -- - Divert a Portion of all Construction 8 Demolition Waste: Required :Divert 50% Divert 65°~ •- R 2 Divert BO% or more i 2 2. Construction Material Efftclencles a. lumber is Delivered Pre-Cut from Supplier (80% or More of Total Board Feet) _.._. `._ -~ ~ ~~ ""-" ""' ~~ "- b. Components of the Project Are Pre-Assembled Oft-Site & Deltvered to the Project t - 25%of Total Square Footage --_---___... _..... ._._ _ ...._.. ~ . -- - -_ _ 2 50°~ of Total Square Footage 2 75% of Total Square Footage or More ' 2 3. Construction Indoor Alr Quality (IAQ) Management Plan ~ - a. An IAQ Management Plan is Written 8 Folbwed for the Project f-- '."'~ - -2 `- ~-^ - --- ~ . i 1. Rerycled Aggregate ' • • - • ° a. Minimum 25% Recycled Aggregate (Crushed Concrete) for Fill, Backfill 8 Other Uses i (~ ~~` ~~~ -~ ~-~ "" - - i 2. Recycled Flyash in Concrete - --"-"-"- ---- -----. I a. Flyash or Slag is Used to Displace a Portion of Portland Cement in Concrete ~0°~ -_. ~..1 t 30% or More I ~ 1 MF GreenPoint Checklist 2005 Edition v.2 Page 2 of 6 - ~ ENTER PROJECT NAME a. FSC-Certified VVrxxf fnr a Parrnnianu „r eu n.... .,~ c...a... 70% b. FSC-Certfled Panel Products for a Percentage of All Sheathing (OSB ii Plywood): ~ 2 j 40°~ i 1 70% 4. Engineered Lumber or Steel Studs, Joists, Headers 3 Beams I t ---'-'--'-`"" ~'-------- --- a. 90% or More of All Floor 8 Ceiling Joists ! - ~ - -- b. 9D% or More of All Studs i c. 90% or More of AN Headers ~ Beams 2 I S. Optimal Value Engineering Framing - . --- - ----- - -- -- a. Studs at 24" Centers on Top Fbor Exterior Walls BJor All Interior Walls b. Door ~ Window Headers Shed for Load (- "'~ t I c. Use Only Jack b Cripple Studs Required for Load 1 ' i 1 6. Steel Framing --_---.-~..__..~-_. __....._ a._Mitigate Thermal Bridging by Installing Exterior Insulation (At Leas t 1-Inch of Rigid Foam) ~ 2 I _ _ _ - 7. Structural Insulated Panels (SIPs) Or Other Solid Wall Systems _ ____-~- _ -"` -'----`---- a. SIPS Or Other Solid Wall Systems are Used for t30% of All: Floors WaNs __.__.__.___.--., --_~ -__ _ i 2 2 Roofs I( 8. Raised Heel Roof Trusses 2 2 a. 75% of Alt Roof Trusses Have Raised Heels ------------ -- ~ ~_ ~ 9. Insulation a. All Ceiling, WaN 8 Floor Insulation is 01350 Certified OR Contains No Added Formaldehyde b i ~- ~- -`- j -"---""'-- . AlI Ceiling, WaG 8 Floor insulation Has a Recycled Content of 75% or More f 10. Durable Roofing Options `-----_-'- .~ "'-"'_"""' ~ - a- Requited: All Shingle Roofing Has 3-Yr Subcontractor Guarantee & 20-Yr Manufacturer Warranty 1 _ I --_.~.__.__ _-__..- .~_--- _.. I '-- - R b. AU Sloped Roofing Materials Carry a 40-Year Manufadurer Warranty ~ 11. Moisture Shedding 6 Mold Avoidance t a. Buikiin9(s) Indude a Definitive Drainage Plane Under Siding • -------- -------- •--____._._.__.__.__._" { b. ENERGY STAR Bathroom Fans in All Bathrooms, Exhausted to the Outdoors with Controls ~ 4 c. A Minimum of t30% of Kitchen Range Hoods Are Vented to the Exterior 1 12. Green Roofs ~ a. A Portion of the Low-Slope Roof Area is Covered By A Vegetated or "Green" Roof 25% 1 50% or More t 1 1 1. Passive Solar-Heating a. Orientation: At Least 40% of the Units Face Directly South --~~-- 2 b. Shading On All South-Facing Windows Allow Sunlight to Penetrate in Winter, Not in Summer ~ 1 c. Thermal Mass: At Least 50% of Floor Area Directly Behind South-Faring Windows is Massive 2 2. Radiant Hydronic Space Heating a. install Radiant Hydronic Space Heating for IAQ purposes (No Forced Air) in All Residences -~- 3. Solar Water Heating - ' - a Pre-Plumb for Solar Hot Water 1 b. Install Solar Hot Water System for Preheating DHW I 4- AI- CondiHeninn .vNi, e.a..~n..~ e..a~,-_~_._ _ ------..~-.--.._-.__-___ o ------ - ----..~_ .-,,...bo. o...a _a. Install Air Conditioning with Non-HC_ FC Refrigerants 5. Advanced Ventilation Practices ~ -' __" -~-'-""--'--- Perform the Following Practices in Residences: a. Infiltration Testing by a C-HERS Rater for Envelope Sealing 8 Reduced Infiltration b. Operable Windows or Skylights Are Placed To Induce Cross Ventilation (At Least One Room In 80% of Units) c. Ceiling Fans in Every Bedroom & Living Room OR Whole House Fan is Used 6. Garage Ventilation a. Garage Ventilation Fans Are Controlled by Carbon Monoxide Sensors (Passive Ventilation Does Not Count)_ 2 t t t ~: 1 I w I I I ~ r _... I 2 --I --- -~ ~... .._.. __..___------...-- -----_...._...._..i I 1 1 MF GreenPoint Checklist 2005 Edition v.2 Page 3 of 6 ~Q ~~ 2 7C7 - !ENTER PROJECT NAME ~. 9. a. Low-Mercury Products Are Installed Wherever Linear Fluorescent Lamps Are Used b. Law-Mercury Products Are Installed Wherever Compact Fluorescent Lamps Are Used _-~----__-..~..-_._. _...._.__.__..----.._.._._-__.r_.~...__._.~. _..__. Light Pollution Reduction a. Exterior Luminaires Emit No Light Above Horizontal OR Are Dark Sky Certified b. Control light Trespass Onto Neighboring Areas Through Appropriate Fixture Selection a. Pre-Wire for Photovoftaics ~ Plan for Space (Clear Areas On Roof & in Mechanlpl Room) ~__- ""~- "~"""-' ~~ __ - ~ _ ....._....._ ~ b. Install Photovoltaics to Offset a Percent of the Projects Total Estimated Electridty Demand - -~ ""_'-°"' 10% ~.._.2 _..-...2._.._.._____~._..___._.._._ ._~ 20% ~ 2 2 30% or more 2 2 c. Educational Display is Provided in a Viewable Public Area _____-..~~__.___r, .~r.---...___.....____T.---..._------ ~ ~ --. ~..,.___ 10. Elevators .... __...__ .__.__~....~.~...._-_..-----_.....__..I a. Gearless Elevators Are Installed 1 - ~+ ~ 11. ENERGY STAR®Appllances ....-_.._.-...~ __-.-------__ .._~.__. __._. "_......_. -_-.~ a. Install ENERGY STAR Refrigerators in All Locations Install ENERGY STAR-Qualified and <25cuft I !----• ~ -------•----_-.__....___..~ , Install ENERGY STAR-Qualified and <20cuft ~ ~ ~ i b. Install ENERGY STAR Dishwashers in All Locations "_"'-""° -~"! `-'- -"--- - • All Di h h A EN '-" ---~ s was ers re ERGY STAR-qualified ( 1 •~--- Residential-grade Dishwashers Use No More than 6.5 Gallons Per Cyde 1 c. InstaN ENERGY STAR Clothes Washers In All Locations 1 ~ 1 2 d. Install Ventless Natural Gas Clothes Dryers in Residences I a. Central Laundry Fadlities Are Provided for All Occupants 1~. Water-EHtelent Fixtures a. All Showerheads Use 2.0 Gallons Per Minute (gpm) or Less b. High-Efficiency Toilets Use 1.28 gpf or Less or Are Dual Flush In All Residences In All Non-Residential Areas c. Install High Effdency Urinals (0.5 gpf or less) or No-Water Urinals Wherever Urinals Are Spedfied: Average flush rate is 0.5 galbns per flush or less Average flush rate is 0.1 gallons per flush or less d. Fk>w Limiters Or Flow Control Valves Are Installed on All Faucets Residences: Ktchen - 2.0 gpm or less Non-Residential Areas: Kitchen - 2.0 gpm or less Residences: Bathroom Faucets-1.5 gpm or less Non-Residential Areas: Bathroom Faucets - 1.5 gpm or less e. Non-Residential Areas: Install Pre-Rinse Spray Valves in Commerdal Kitchens -1.6 gpm or less 4. Source Water Effielonr_v a. Use Recycled Water for Landsppe Irrigation or to Flush ToiletsNrinals b. Use Captured Rainwater for Landscape Irrigation or to Flush 5% of TaletS BJor Urinals c~Water Is Submetered for Each Residential Unit 8Non-Residential Tenant 1. Construction Indoor Alr Quality Management a. Perform a 2-Week Whole Building Flush-0ut Prior to ~ mj I t f ~ 1 1 ° A ' = ( ~ j ~ f c ~ x_W_.i, a~ ~ .:_ o~ io ~ _ ~~... 3 r--_.---.. _._ _ .. 1 _ _----I 2 i 1 _- ~__..~._. 1.. T. i__.__.___.__.__.~...._ __... ~_._ ._ ..__. 2 j 2 0.5 0.5 0.5 0.5 0.5 0.5 0.5 0.5 t ..... __ ._.-- ---- 2 4 4 I a. Provide Permanent Walk-Oft Mats and Shoe Storage at All Home Entrances """--"~-- ~~----- b. Permanent Walk-Off Systems Are Provided at All Main Building Entrances & In Common Areas 1 ~ 1 3. Recycling 8 Waste Collection ~ a. Residences: Provide BuiR-In Recyding Center In Each Unit ~ -• --- ---{ _ _..~..._____.._.______...__.___.._...___.__._..~_ 2 ------------_._._______..___-^~.~._.._.__..-_._.. -------___._.._.. _.J MF GreenPoint Checklist 2005 Edition v.2 Page 4 of 6 - ~ ENTER PROJECT NAME 4. Use Low/No-VOC Pairtts 3 Coatings a. Low-VOC Interior Paints (c50 gpl VOCs (Flat) and <150 gpl VOCs (Non-Flat)) In All Residences In All Non-Residential Areas: b. Zero-VOC: InteriorPaints (<5 gpl VOCs (Flatp In All Residences In All Non-Residential Areas: c. Wood Coatings Meet the Green Seal Standards for Low-VOCs In All Residences In All Non-Residential Areas: d. Wood Stains Meet the Green Seal Standards for Low-VOCs In All Residences In All Non-Residential Areas: 5. Use Recycled-Content Exterior Paint a. Use Recycled Content Paint on 50% of All Exteriors pow-vv~ t:onstrlCLlon Adhesives '~ ! 6J I C ~ y I m i ~ ~ E i _.; m a l a ~ o W a; of ~~ . ~ ._1_._ .~ ~ L._ 3 a ~.....___...__.__........_._......__...---'-._._.____...__ i 0.5 i _ 0.5 ~ .~_____..._.._ , . ~ 6 ----_~.~. i U_ ._ _.__---------_I I ~~ ~ - --•' . 1 1 ----- _ 1 a. Use Low-VOC ConsUucbon Adhesives (<70 gpl VOCs) for All Adhesives ~ - 7. Environmentally Preferable Materals for Interior Finish ~ "'----~'--------- ---- Use Environmentally Preferable Materials for Interior Finish: A) FSC-Certified Wood B) Reclaimed Lumber C) Rapidly Renewable D) Recycled- Contenl or E) Finger-Jointed a. Residences: At Least 50% of Each Material: i. Cabinets _._... .....___._..______._ _..___~. ii. Interior Trim 0.5 iii. Shelving 0.5 iv. Doors 0.5 v. Countertops ~ 0.5 b. Non-Residential Areas: At Least 50% of Each Material: t 0.5 i. Cabinets r_ .~._..._._.. _.._-- -•_-.-- - -______ li. Interior Trim 0.5 i iii. Shelving ( 0.5 iv. Doors 0.5 v. Countertops I 0.5 8. Reduce Formaldehyde in Interior Finish Materials Reduce Formaldehyde in Interior Finish Materials (Section 01350) for At Least 90% of Each Material Below: a. Residences: i. Cabinets ii. Interior Trim iii. Shelving iv. Subfloor b. Non-Residential Areas. i. Cabinets ii. Interior Trim iii. Shelving iv. Subflaor 9. - -----_. _. 1 I 0.5 _- ------•-- I 0,5 0.5 ----0.5 _.___-_--- I Use Environmentally Preferable Flooring: A) FSC-Certified or Reclaimed Wood B) Rapidly Renewable Flooring Materials C) Recycled-Content Ceramic Tiles D) Exposed Concrete as Finished Floor or E) Recycled~ontent Carpel Note: Flooring Adhesives Must Have <70 aol VOCs. a. Residences: i. Minimum 15% of Floor Area ii. Minimum 30% of Floor Area iii. Minimum 50% of Floor Area iv. Minimum 75% of Floor Area b. Non-Residential Areas: i. Minimum 15% of Floor Area ii. Minimum 30% of Floor Area iii. Minimum 50% of Floor Area iv. Minimum 75% of Floor Area Low-Emitting Flooring a. Residences: Flooring Meets Section 01350 or CRI Green Label Plus Requirements-50% Min. MF GreenPoint Checklist 2005 Edition v.2 1 0.5 0.5 j 0.5 ~ ' 0.5 j j 0.5 r 0.5 ,._....___....._..____. ~_..---0.5 _._ -,_ ~- 0.5_~.~._----I Page 5 of 6 ENTER PROJECT NAME '~ i' o m ~, ' m ; , E E~ ~ W a Q of ~ ~ ~ V ~ I b. Non-Residential Areas: Flooring Meets Section 01350 or CRI Green Label Plus Requirements (50°~ N 0 5 11. Durobla Cabinets _ -_...~_. -. _ _ . _ . _._ .-.... _..._ _ ._. , Install Durable Cabinets in All: a. Residences ~._ _.___ _._._.._._ .__....___..._...__ ...' 0.5 f b. Non-Residential Areas ~j ~ _ - 0.5 12. Furniture r!i Outdoor Play Structures _•---- ------ ---_.._ _; a. Play Structures 13 Surfaces Have an Overall Average Recycled Content Greater Than 20% ~ i'+ 1 "-I b. Environmentally Preferable Exterior Site Furnishings I 1 , a At Least 259E of All newly Supplied Interior Fumlture has Environmentally Preferable Attributes ~ 13. Vandalism i3eterrence - . _....-. -....___..__...-...._._. ___._ a. Project Indudes Vandalism Resistant Finishes and Strategies r` ~ j • - i 1. Incorporate GreenPolnt Checklist In Blueprints a Required: Inco orate Gr P i t Ch ddi i -' ~ ~ ..~ - . p een o n st e n Blueprints j 2.Operatlons 8 Maintenance Manuals "-" "~ °-- a. Provide 08M Manual to Building Maintenance Staff ~'- b. Provide OSM Manual to Occupants ~ 1 ~ ~ 3. Transit Options ~_a. Residents Are Offered Free or Discounted Transit Passes --- _ __, ~ ~ 2 --- •• `-""- "'--~' ~--~-"~ --- 4. Educational Slgnage -•-- -a. Educational Signage HghBg hting 8 Explaining the Project's Green Features is Included r-'~ ~ -- --) ' ~ ^ ~ ""---` - "-' "~ _ 5. Vandalism Management Plan ~ '- --- a. Project Indudes a Vandalism Management Plan for Dealing with Disturbances Post-0ccupancy i" "" ~""~ ~`"---`°-""`""~"__.° ,~6. Innovation: List innovative measures that meet the green building objectives. Enter up to a 4 Points in each category. Points will be evaluated by Build It Green and the GreenPoint Rater. 0 Innovation in Communit E t t 4 P i ~~ y: n er up o o nts at left. Enter description here 0 Innovation in Energy: Enter up to 4 Points at left. Enter description here 0 Innovation in IAQ/Health: Enter up to 4 Points at left. Enter description here 0 Innovation in Resources: Enter up to 4 Points at left. Enter description here i 0 Innovation in Water: Enter up to 4 Points at left. Enter description here Points Achieved from Specific Categories Current Point Total _ Project has not yet met the recommended minimum requirements - Total Project Score of At Least 50 Points - Minimum points in specific categories: Community (6), Energy (30), IAQ/Health (5), Resources (6), Wafer (3) - Required measures A. 8a, 8.1 a, C.10a, and/or F.1 a MF GreenPoint Checklist ~ 2005 Edition v.2 Page 6 of 6 ,,~¢.,, =av .~ ~ ~ EXHIBIT S Memorandum of Affordable Housing Agreement for the Construction of Inclusionazy Units and the Payment of Fees In-Lieu of Constructing Inclusionary Housing Units RECORDING REQUESTED BY: CITI' OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for. Recorder's use MEMORANDUM OF SUBSEQUENT AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California Waited liability company. Subsequent and Final Phases (627 Residential Lots) of the Positano Project This Memorandum of Subsequent Affordable Housing Agreement for the Construction of Inclusionazy Units and the Payment of Fees In-Lieu of Constructing Inclusionary Units (this "Memorandum") is entered into on this -day of , 2008, by and between the City of Dublin, a municipal corporation (hereafter "Cit}~') and Dublin RE Investors, L.L.C., a California limited liability company, and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). . 1. Pursuant to the Subsequent Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units, dated as of . , 2008, by and between City and Developer (the "Agreement"), the Parties have set forth their respective obligations with respect to the provision of affordable units on lands presently owned by Developer, a portion of the 1043 residential pazcel Positano Project (the "Project") ,and more specifically described in Exhibit A (the "Property"). These obligations run with the land. 2.. The City and the Developer are parties to a certain Affordable Housing Agreement that sets out the specific obligations for the construction of Inclusionary Units and payment of fees in lieu thereof in conjunction with the a 416 residential pazcel phase of the Project ("the Initial Agreement"). The Initial Agreement anticipates the parties entering into a subsequent affordable housing agreement setting forth the manner in which the Regulations will be complied with for the remainder of the Project. 3. The Agreement sets out the specific obligations for the construction of Inclusionary Units and payment of fees in lieu thereof in conjunction with a subsequent 627 residential parcel phase J of the development of the Project. The Agreement sets out separate obligations fora 88 residential parcel phase ("the Subsequent Phase") and a 539 residential parcel phase ("the Final Phase"). The Agreement also obligates the Developer to make a Community Benefit Payment, as described in the Agreement, prior to issuance of building permits for each residential unit (excepting Second Units) within the Subsequent Phase and the Final Phase. The Agreement prohibits development development on, and the City's approval of subsequent final maps that include, any portion of the Property in the Subsequent Phase and the Final Phase, until the Developer's obligations set forth in the Agreement are satisfied. The Agreement also contains the Developer's covenant, on behalf of itself, and its successors and assigns, that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase) until such time as it has satisfied its obligations under the Agreement, as to, respectively, the Subsequent Phase and' the Final Phase.. 3. Developer and City have executed and recorded this instrument to give notice of the Agreement, and the respective rights and obligations of Developer and City. The unrecorded Subsequent Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees in Lieu of Constructing Inclusionary Housing Units is incorporated by reference in its entirety in this Memorandum. 4. This Memorandum shall bind and inure to the benef t of the parties and their respective heirs, successors and assigns, subject however to restrictions set forth in the Agreement regarding assignment. [EXECUTION PAGE FOLLOWS] ~~~~~~~ IN WITNESS WHEREOF, the patties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN By: ~~~~o Joni Pattillo, City Manager Attest: Cazoline Soto, City Clerk DUBLIN RE INVESTORS, LLC a California limited liability company By: Braddock and Logan Services, Inc. a California corporation Its Manager Name: Approved as to form n Bakker, City Attorney BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner Name: ~. ~ ~ ~ ~?o CALIFO~iN1A ALL-PUi~POSE ACKlNOWLE[~G6MEN7' State of California County of Contra Costa On `-}' z~/ CQ Nancy E. Embrey, Notary Public ~ ~ before me, oda ..}} Hera Insert Name end Title at ele Ilfar personally appeared J ~~''~ ~~~~~ K"e~ c ~ Nema(q d slOnar(c) i N~ANGY E. EIIABREIf ~~` Corrurt,~lon # 1 S7t1043 Notary P~tWc - CalHomlo CoM-o Costa County trAy comm. E~Ire>s .ktn a. 2009 who proved to me on the basis of satisfactory evidence to be tha person whose name) 4'siare subscribed to the within instrument and acknowledged to me that ~she/they executed the same in ~her/their authorized capaaty(Ir~), and that by I~her/their signature( on the instrument the person(1~, or the entity upon behalf of which the person( acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS hand and official seal. Plan Notary ssd Above Signature ~ ~ ~ ~~ Si • of Naary Publ@ OPTIONAL Though the lnlormahon below is not required by law, R may prove valuable to persons relying on the document and could prevent /raudulent rerr-oval end reattachment of this /orm to another document. Description of Attached Document Title or Type of Document: __ r r I e.Yf'1 0 • v~ J Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): _ ^ Partner - O Limited ^ General O Attorney in Fact ^ Trustee ^ Guardian or Conservator O Other: Signer Is Representin pie: ~ ~~ ~,. ~~, Number of Pages: Signer's Name: ^ Individual ^ Corporate Officer -Title(s): _ O Partner - O Limited O General ^ Attorney In Fact O Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Top of thumb here 02007 Ndbnd Nary Aecodetlon• 9350 Da Soto Me., P.O Bon 2+102 •ChdwvMh, G Bt3132~02• wrrw.NatlorpPlota,y orD Item x5907 Ftaerder: GITd4Fres 1-0068768927 RESOLUTION NO. - 09 ,~ A RESOLUTION OF THE CITY COUNCIL 0 ~ ~ ~ ~~ OF THE CITY OF DUBLIN APPROVING AMENDMENT N0.3 TO THE AFFORDABLE HOUSING AGREEMENT FOR FIRST PHASE (416 UNITS) OF POSITANO TO MODIFY THE UNIT MIX AND INCOME AFFORDABILITY LEVEL OF THE INCLUSIONARY UNITS AND AUTHORIZING THE CITY MANAGER TO EXECUTE THE AMENDMENT (PA OS-038 AND PA 07-005) WHEREAS, Dublin RE Investors, LLC (the Developer) is the owner of two parcels of land within Fallon Village which together are known as Positano and consists of 1,043 residential units; and WHEREAS, an Affordable Housing Agreement is required by the Inclusionary Zoning Regulations of City of Dublin Zoning Ordinance (Chapter 8.68); and WHEREAS, the Developer has proposed a comprehensive affordable housing proposal to address the requirements of the Inclusionary Zoning Ordinance for the entire Positano development and said proposal includes alternative methods of compliance with the Inclusionary Zoning Regulations; and WHEREAS, the City Council held a public meeting on October 18, 2005, to review the affordable housing proposal, and the City Council directed Staff to work with the Developer to refine the affordable housing proposal; and WHEREAS, the City and the Developer subsequently entered into an Affordable Housing Agreement for the Construction of Inclusionary Units in the First Phase of the Positano development, dated June 5, 2007 ("the First Phase Agreement") and Amended on June 17, 2008 and November 4, 2008, wherein the Developer agreed to construct a total of 52 affordable units (18 single-family detached homes and 34 secondary units); and WHEREAS, the Agreement specifies the level of affordability (moderate-income, low-income, and very low-income units are proposed), the location of the required detached and secondary units, and the phases of the Project within which the affordable units must be completed; and WHEREAS, the City and Developer are parties to a subsequent Affordable Housing Agreement to satisfy the affordable housing obligation for future phases of Positano; and WHEREAS, Braddock and Logan, on behalf of Dublin RE Investors, LLC (the Developer) has requested an amendment to the First Phase Agreement to (a) eliminate seven of the single-family detached homes and replace them with secondary units affordable to very-low income households and (b) alter the timing of the construction and the affordability of the various affordable units. WHEREAS, the Project has been found to be Categorically Exempt from the California Environmental Quality Act (CEQA); and WHEREAS, a Staff Report dated June 16, 2009, and incorporated herein by reference, described and analyzed the proposed amendment to the Affordable Housing Agreement; and ~t~~'~ ~ WHEREAS, the City Council did use its independent judgment and consider all said report , recommendations and testimony. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve Amendment No. 3 to the Affordable Housing Agreement for the First Phase (416 units) of Positano to provide: eleven single-family detached homes (1 low income unit and 10 moderate income units); eight 1-bedroom secondary units (71ow income units and 1 very-low income unit); and thirty-three studio secondary units (33 very-low income units) as described in Exhibit A. BE IT FURTHER RESOLVED that the City Manager is authorized and directed to execute Amendment No. 3 to the Affordable Housing Agreement included as Exhibit A. PASSED, APPROVED AND ADOPTED this 16th day of June 2009, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor -2- G:\PA#\2005\OS-038 B&.L Stage Z Fallon VillageWffordable Housing AgreementWHA Phase !Amend #3\CC Reso 06.16.09.doc ., ~~~~~ ~~~ AMENDMENT N0.3 TO AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. First Phase (416 Residential Lots) of the Fallon Village Project THIS AMENDMENT N0.3 TO AFFORDABLE HOUSING AGREEMENT is hereby entered into this 16th day of June, 2009 by and between the City of Dublin ("the City") and Dublin RE Investors, LLC, a California limited liability company and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). Recitals 1. City and Dublin RE Investors are parties to an Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees Iri Lieu of Constructing Inclusionary Housing Units, dated June 5, 2007, as amended by the First Amendment to said agreement, dated June 17, 2008, and by the Amendment No. 2 to said agreement, dated November 4, 2008 ("the Agreement"), which agreement sets forth an alternate method of the Developer's compliance with the Inclusionary Zoning Regulations contained in Chapter 8.68 of the Dublin Municipal Code ("the Regulations") for the first 416 of the 1043 residential lots (the "Project"). Dublin RE Investors has conveyed some of the residential units subject to this Agreement to Braddock & Logan Group II, L.P., which has become a party to this Agreement. 2. The Agreement refers to the initial 247 residential units in the Project as "Part One of the Expanded First Phase." The Agreement, as previously amended, provides that Developer will satisfy its 31-inclusionary unit obligation in Part One of the Expanded First Phase (a) by constnzcting (i) 9 integrated inclusionary units (single-family homes) on 3,200 square foot lots, which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), and (ii) 17 1-bedroom, secondary dwelling units, which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"); (b) paying fees in lieu of construction for the remaining 5 unit obligation; (c) making a community benefit payment prior to issuance of each building permit equal to $958.77 (which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); (d) including rear yard landscaping and energy efficiency measures to reduce the homeowners' cost of living in the 9 integrated inclusionary units; and (e) incorporating green building principles into the 26 inclusionary units. 3. The Agreement, as previously amended, requires the income levels of the 26 inclusionary units in Part One of the Expanded First Phase to be as follows: 8 very low-income units (8 1-bedroom Secondary Units); 121ow-income units (3 four-bedroom Integrated Units, and 9one-bedroom Secondary Units); and 6moderate-income units (6 four-bedroom Integrated Units). 4. Developer, following further discussions with City staff, has proposed to increase the number of inclusionary units to be constructed in Part One of the Expanded First Phase by five Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16.2009 units thereby eliminating the payment of in-lieu fees for the First Phase, to reduce the number of inclusionary units in Part Two of the Expanded First Phase by five units, and to change the inclusionary unit mix of the 31 units in Part One of the Expanded First Phase by (a) eliminating (i) two low-income integrated units; (ii) two low-income second units; and (iii) five moderate- income integrated units, (b) increasing the number of very low-income secondary units by 14 (which includes the five additional inclusionary units), and (c) changing the size of 21 of the very low-income, secondary units from 1 bedrooms to studios. 5. Accordingly, Developer has proposed to satisfy its 52-unit inclusionary unit obligation for the Expanded First Phase by: a. Constructing a total of 31 inclusionary units in Part One of the Expanded First Phase as follows: (i) 2 integrated inclusionary units (1 moderate-income unit and llow-income unit), which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), (ii) 71ow-income, 1 bedroom secondary units and 22 very low-income, secondary dwelling units (21 studios and 1 1-bedroom), which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"); b. Constructing a total of 21 inclusionary units in Part Two of the Expanded First Phase as follows: (i) 9moderate-income, integrated inclusionary units, which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), (ii) 12 1-bedroom, very low-income secondary dwelling units, which would be rental units and affordable in perpetuity, rather. than for 55 years as the Regulations require ("the Second Units"); c. ~ Making a community benefit payment prior to issuance of each building permit equal to $958.77 (which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); d. Including rear yard landscaping and energy efficiency measures to reduce the homeowners' cost of living in the Integrated Units; and e. Incorporating green building principles into the inclusionary units, by obtaining 52 points for unit on the "Single Family GreenPoint Checklist, which exceeds the City's 50-point requirement under the Green Building Ordinance.' 6. The City is agreeable to the amendment.proposed by the Developer, and the City Council hereby finds that the alternate method of complying with the Regulations for the 416- unit Expanded First Phase meets the purposes of the Regulations. NOW, THEREFORE, Developer and City for themselves and their respective successors and assigns hereby agree as follows: Section 1. Amendment of Section 3 of the Agreement. Section 3 of the Agreement is amended to read as follows: Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project 2 June 16.2009 " 3. Developer's Compliance with Affordable Housing Obli a~ tion. Developer intends to complete the Project in multiple phases. Section 8.68.030 of the Regulations requires that all affordable units in a project be constructed concurrently with a project or phase of a proj ect. The City hereby finds that adherence to the following schedule of construction for the Inclusionary Units would constitute construction of the Inclusionary Units concurrently with the market rate units in the Project as required by Section 8.68.030 of the Regulations. a. Part One of Expanded First Phase (Initial 247 Residential Parcels). Developer has identified a 247-lot portion of the Project, which is depicted in Exhibit 2, that is referred to herein as "Part One of the Expanded First Phase." Developer will satisfy its Affordable Housing Obligation for Part One of the Expanded First Phase by (a) constructing 31 Inclusionary Units (one (1} 1-bedroom, very low- income, Second Unit; seven (7) 1-bedroom, low-income Second Units; twenty-one (21) studio, very low-income Second Units; one (1) 4-bedroom, low-income Integrated Unit; and one (1) 4-bedroom, moderate-income Integrated Unit; (b) making a $958.77 community benefit payment prior to issuance of each building permit in Part One of the First Phase as provided in Section 5 of the Agreement. Exhibit 3 shows, in two separate diagrams, the location and type of the lnclusionary Units to be constructed within Part One of the Expanded First Phase. The City finds that the preliminary construction schedule attached hereto as Exhibit 4, which shows the completion of the 31 Inclusionary Units along with 216 market rate units, constitutes construction of the Inclusionary Units concurrently with the market rate units as required by Section 8.68.030 of the Regulations. b. Part Two of Expanded First Phase (Subsequent 169 Residential Parcels). Developer has identified a 169-lot portion of the Project, which is depicted in Exhibit 2, that is referred to herein as the "Part Two of the Expanded First Phase." Prior to development on, and approval of subsequent final maps that include, Part Two of the Expanded First Phase, Developer shall have received the approval of the Community Development Director of (a) a Diagram of Location of Additional Inclusionary Units in the Expanded First Phase of the Project, in a form similar to Exhibit 3 attached hereto ("the Subsequent Location Diagram") and (b) a preliminary construction schedule for the subsequent phase of the Project ("the Subsequent Construction Schedule"), in a form similar to Exhibit 4 attached hereto. Upon the Community Development Director's approval, the Subsequent Location Diagram and the Subsequent Construction Schedule shall be added to, respectively, Exhibit 3 and Exhibit 4 to this Agreement with respect to the Integrated Units to be constructed in connection with Part Two of the Expanded First Phase. In approving the revised Exhibits 3 and 4, the Community Development Director shall find (a) that the revised Exhibit 3 shows 12 additional very low-income, Second Units and 9 additional moderate-income, Integrated Units; (b) that adherence to the revised Location Diagram and the revised Construction Schedule would constitute construction of 21 additional Inclusionary Units concurrently with Part Two of the Expanded First Phase and (c) that the 21 Inclusionary Units are "reasonably dispersed" throughout the Expanded First Phase, as required by Section 8.68.030.E of the Regulations. Developer hereby agrees that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16.2009 ~~ ~~ ~~ maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase) until such time as it has satisfied the requirements of this Subsection. c. If the Building Official or Community Development Director determines that the Inclusionary Units have not been or are not being constructed concurrently with the market-rate units as required by this Section 3, the Building Official shall withhold further issuance of building permits in Part Two of the Expanded First Phase until construction of the Inclusionary Units in the phase has been completed to the satisfaction of the Community Development Director. Notwithstanding the foregoing, Developer shall be permitted to deviate from the preliminary construction schedule in Exhibit 4, provided that Community Development Director finds that the Inclusionary Units are constructed concurrently with the market rate units as required by Section 8.68.030 of the Regulations. Section 2. Amendment of Section S of the Agreement. Section 5 of the Agreement is amended to read as follows: "5. Community Benefit Payment. Developer hereby agrees to make a $958.77 community benefit payment prior to issuance of the building permit for each residential unit in the Expanded First Phase, excepting Secondary Units. The community benefit payment required by this Section shall be in addition to the $2,396.93 community benefit payment required by the Development Agreement for the Fallon Village Project between Developer and the City, dated December 20, 2006." Section 3. Amendment of Subsection 6.D of the Agreement. Subsection 6.D of the Agreement is amended to read as follows: "D. Green Building Principles. Construction of the Integrated Units and Secondary Units shall incorporate Green Building Principles by obtaining 52 points on the Single Family GreenPoint Checklist," attached hereto as Exhibit 5." Section 4. Amendment of Section 7 of the Agreement. Section 7 of the Agreement is amended to read as follows: "7. Unit Bedrooms and Size. The size of the Inclusionary Units shall be consistent with the Site Development Review approval of the Planning Commission, provided however, that minor changes to unit size may be approved by the Community Development Director through a Site Development Review Waiver. The Developer proposes to provide in Part One of the Expanded First Phase: A. 29 very low-income units (8 1-bedroom Secondary Units and 21 studio Secondary Units); B. llow-income, four-bedroom, Integrated Unit ;and C. lmoderate-income, four-bedroom Integrated Unit. Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16.2009 The developer proposes to provide in Part Two of the Expanded First Phase: A. 12 very low-income units (12 1-bedroom Secondary Units); B. 9moderate-income, Integrated Units. The City hereby finds that, while this breakdown does not reflect the range of numbers of bedrooms provided in the Expanded First Phase as a whole, as required by Section 8.68.030.E of the Regulations, the Developer's alternate method of compliance meets the purposes of the Regulations." Section 5. Revised Memorandum of Agreement to Be Recorded. Developer and City shall execute and acknowledge a revised Memorandum of this Agreement ("Memorandum") substantially in the form attached hereto as Exhibit C, and City shall cause the Memorandum to be recorded in the Official Records of Alameda County upon its execution. This Memorandum shall supersede and replace the Memorandum referenced in the Original Agreement. Section 6. Amendment of Exhibit 3 and Exhibit 4. Exhibit 3 and Exhibit 4 of the Agreement are hereby replaced with Exhibit A and Exhibit B to this Agreement. Section 7. All other provisions of the Agreement shall remain in effect. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN By: Joni Pattillo, City Manager Attest: Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney DUBLIN RE INVESTORS, LLC a California limited liability company By: Braddock and Logan Services, Inc. a California corporation Its Manager y= Name: E F F ~ (~~ ~ ~~L Its • ~~ ~c.~ P k.L s t D ~ ~'~ BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16. 2009 v zz~ ~-l-,o Name: EFL i-A~~~-~ v t crC P2ES ~ o ~ 1228984.3 Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16. 2009 i 2 ~zsb ~~ CALIF®Rtd1A ALL-PURP®SE ACK~1®WLEDGMENT "~11L`!'~4'~.c G`.ZY".('Y'.ZY'.~~C~"~Y'.cE>.rr~C..7~w"'c"x..-,~,~.+M-~wznacrrra•nre~r-.~~rar~r~ r~--~, r~-r. =r:(:F.c"f~.?~`F`F'..c~Y=`.c~.c!'.c~:[a~C State of California County of Contra Costa On ~~~~ before me, Date personally appeared ~ ~ ~~ NANCY E. EMBREY "" Commission ~ 1578043 ..s Notary Public - Capfomla Ctx>;tro Costa County t1Ay Comm. Expires Jun 8, 2009 who proved to me on the basis of satisfactory evidence to be the person whose name(~~~e subscribed to the within instrument and acknowledged to me that tQ~si}e~eq executed the same in~/14e+~f~°reir authorized capacity(ts~s), and that by ~/herftftiSi'r signature( on the instrument the person('s~j, or the entity upon behalf of which the person( acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoirig paragraph is true and correct. WITNESS my hand and officialQseal. Signature a- ` ' Place Notary Seal Above - aWre of Nofary Public OPTIONAL Though the intormation below is not required bylaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Do/c~ument a ~1 /- ~ ~© ~~ ,l Title or Type of Document: rl ~~~ ~ ~ ' ` rl f~ ~' ~'~"`+~" ` " ' ~Q Document Date: ~ ~(~ d ~i Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer-Title(s): - ^ Partner - ^ Limited ^ General ^ Attorney in Fact O Trustee ^ Guardian or Conservator O Other: Signer Is Nancy E. Embrey, Notary Public ,~ Top of thumb here Signer's Name: ^ Individual U Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: lop of thumb here ®2007 National Notary Association •9350 De Soto Ave., P.O Bo, 2402 • Chelsvrorth, CA 91313.2402• vr~.w.NetiorelNoteryorg Item 115907 Reonier:CaIITdLFree 1.800-876-fi827 ~. EXHIBIT A Revised Exhibit 3 to the Agreement ["Diagram of Location of Inclusionary Units in the First Phase of the Project"] ~~~~ ~~a ~_ 71 70.. 3-A ., ~- 69 ~ ... -, . 68-. ; ®`, 59 ss ° ~titi° ~, 57 tiS`~ 56 © ~,~ ® 34 NOT A PART I` ~, 2 ~'.; ~ O * GO~ 43 ~G~yP 7 6 S.A 5 ~. -63.~® ~: ..°, ~... .~ - `~. 66'. ;: 3 A .. 65 . ~. ®~`~ %~~ S cANTA~ 9 DRIVE ® -_ c[vy ¢' I3 ® p ' p e~ I I- ~ ,.B a LEGEND ® Moderate Income - I Plan 1 - 4 bedroom BMR Unit Lot 72 Low-Income - 8 unit Plan 1 - 4 bedroom BIvIIt Unit Lot 62 PJan 3 - Secondary Unit (1 btt Lots 2, 47, 51, 52, 60, 64, 67 0 Very-Low Income - Plan 3 - Swondary Unit (1 btt Lot 69 All lots without abov symbols are market-r # Lot Number * Resident Parking in Driveway for Afford; Secondary Unit Sa Plan and Elevation ~° o~.~ ~k ~~~o sw \llf~H Irx I Ib 01 FORiNO COURT PALATINO COURT IJ I1 !1! i! I ! 7 l'1 ~, m \ d 9~ o ~~ O~ r Jm ror Jar !m la MONTELENA COURT w ra »+ >~ ~ FORINO DRIVE !n !!7 rp .L T ~ rtt ~ !s yy JM T ! ut y 'P 7 0 ~ u m m +~ m ~ to ~ O !10 rn ; !N ! rA H ~ rv m ne ~ r n Jr PN~~ 'N ~~~CGt V ~N~ O„ ~~ v G GP~ ~P l` O 40~ i Legend: Plan 3 with Sewn Affordable Units occupied Q 4-23-2009 iJ:53:20 Wilhouer P;\19379\sdr\Neighborhood B\Amend\Aff-Housing-Agmt-Sec-Unit-site-dev-p1an090422.dxg EXHIBIT B Revised Exhibit 4 to the Agreement ["Preliminary Construction Schedule"] ~~~r ~~~~ ~~ ~ Positano First Phase Preliminary Construction Schedule Amendment #3 HASE ONE come Level Moderate Low Ve Low Sub-Total BMR Market Total arket Rate - Neighborhood A 30 30 arket Rate -Nei hborhood B 26 26 Bedroom BMR 1 1 0 2 2 :conda Unit -1 bedroom 0 7 1 8 8 :conda Unit -Studio 0 0 0 0 0 ~tal 1 8 1 10 56 66 ~rcanta a of Phase Units 2% 12% 2% 15% 85% 100% HASE TWO come Level Moderate Low Ve Low Sub-Total BMR Market. Total arket Rate - Neighborhood A 20 20 arket Rate -Nei hborhood B 64 64 Bedroom BMR 0 0 0 0 0 aconda Unit -1 bedroom 0 0 0 0 0 ~conda Unit -Studio 0 0 0 0 0 ~tal 0 0 0 0 84 84 ~rcanta a of Phase Units 0% 0% 0% 0% 100% 100% HASE THREE come Level Moderate Low Ve Low Sub-Total BMR Market Total arket Rate - Neighborhood A 20 20 arket Rate -Nei hborhood B 85 85 Cumu Total 5. Cumu Total 1~ Cumu Total 2~ Bedroom BMR 0 0 0 0 0 aconda Unit -1 bedroom 0 0 0 0 0 econda Unit -Studio 0 0 21 21 21 ~tal 0 0 0 21 105 126 ercanta a of Phase Units 0% 0% 0% 0% 83% 83% ~~ ~~, ?~1 EXHIBIT C Revised Memorandum of Agreement for the Construction of Inclusionary Units ~~ ~-~ RECORDING REQUESTED BY: CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder's use MEMORANDUM OF AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. First Phase (416 Residential Lots) of the Fallon Village Project This Memorandum of Affordable Housing Agreement for the Construction of Inclusionary Units and the Payment of Fees In-Lieu of Constructing Inclusionary Units (this "Memorandum") is entered into on this 16th day of June, 2009, by and between the City of Dublin, a municipal corporation (hereafter "City") and Dublin RE Investors, LLC, a California limited liability company, and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). 1. .Pursuant to the Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units, dated as of June 5, 2007, and as amended on June 17, 2008, on November 4, 2008, and on June 16, 2009, by and between City and Developer (the "Agreement"), the Parties have set forth their respective obligations with respect to the provision of affordable units on lands presently owned by Developer, a portion of the 1043 residential parcel Positano Project (the "Project") ,and more specifically described in Exhibit, A (the "Property"); These obligations run with the land. 2.. The Agreement sets out the specific obligations for the construction of Inclusionary Units and payment of fees in lieu thereof in conjunction with the initial 416- residential parcel phase of the development of the Project ("the Expanded First Phase"). It also obligates the Developer to make a Community Benefit Payment, as described in the Agreement, prior to issuance of building permits for each residential unit (excepting Second Units) within the Expanded First Phase. Development on, and the City's approval of subsequent final maps that include, any portion of the Property beyond the Expanded First Phase shall require either an amendment to this Agreement or a subsequent affordable housing agreement ("the Subsequent Agreement") setting forth the manner in which the Regulations will be complied with for the remainder of the Project. The Agreement also contains the Developer's covenant, on behalf of z3~~ ~~~ itself, and its successors and assigns, that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase) until such time as it has entered into the Subsequent Agreement. 3. Developer and City have executed and recorded this instrument to give notice of the Agreement, and the respective rights and obligations of Developer and City. The unrecorded Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees in Lieu of Constructing Inclusionary Housing Units is incorporated by reference in its entirety in this Memorandum. 4. This Memorandum shall bind and inure to the benefit of the parties and their respective heirs, successors and assigns, subject.however to restrictions set forth in the Agreement regarding assignment. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN By: Attest: Joni Pattillo, City Manager Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney DUBLIN RE INVESTORS, LLC a California limited liability company By: Braddock and Logan Services, Inc. a California corporation Its Manager Name: E ~' F ~. PvJ R E~ CrC- s: ~i~G P2Es ~ r~~~'r BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner ame: ~F F F --~A~l ~E ~ic~ Its: V ~ ~-~ P2 ~ s ~ o E ~ v ;/ ~~~2~4 CALIF®RPlIA ALL-P1JRP®SE ACICIV0IAlLEDGME1117' ~,crt~r ~,r~.~..c~z~rrc~.rr .z~r~z~c:c~c'~r~u~c.~.~r.~r.,~~czr.,~~.,~r.4c~.~~~~~-c•~,~r;~„~,~,~-.~,cr-.-c-mi--ccr.Ee State of California County of Contra Costa On ~ ~ ©/ before me, Nancy E. Embrey, Notary Public Date r /~ n Here Insert Name and Title of the 08icer personally appeared ~ ~r ~ ~f'T l.J f~.. ~ IV ~~ Name(s) of Stgrer(s) WAt4CY E. EMBREY _ Commission #E 1578043 y t~tary Public - CaAfomla ~y Contra Costa Courtly My Comm. Expires Jun 8, 2009 Place Naary Saal Above who proved to me on the basis of satisfactory evidence to be the person`(, whose name-subscribed to the thin instrument and acknowledged to me that ~y executed the same i is 7eirauthorized capacity(~s), and that by is ~ ignature`(~ on the instrument the person~j, or the entity upon behalf of which the person'(, acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ~ ~ ' lure of Notary Public o,~rioNa~ Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent /raudulent removal and reattachment of this /orm to another document. ~,,//J~ Description of Attached Document ~'/) L ~ ~} ~ - 'F~.Q~-n v a S~~ Tit{e or Type of Document: ~ ~.. Document Date: CO l ~ (0 1 ~ Signer(s) Other Than Named Above; Capacity(ies) Claimed by Signer(s) Signer's Name: Individual Corporate Officer-Title(s): - Partner - ^ Limited ^ General Attorney in Fact Trustee ^ Guardian or Conservator ^ Other: Is Rt ~~ Signer's Name: ^ Individual Ll Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: ___ Number of Pages: Signer Is Representing Top u( thumb here ®20D7NalionalNdaryAssocintion•9350DeSofoAve-,P.OBox2402•Chalsv~orth,CA91313-2402•www.NationalNataryorg Item 85907 Reorder: CellTdl-Freet•B00-676.6827 2 i~~j a~~ AMENDMENT N0.3 TO AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. First Phase (416 Residential Lots) of the Fallon Village Project THIS AMENDMENT N0.3 TO AFFORDABLE HOUSING AGREEMENT is hereby entered into this 16th day of June, 2009 by and between the City of Dublin ("the City") and Dublin RE Investors, LLC, a California limited liability company and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). Recitals 1. City and Dublin RE Investors are parties to an Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units, dated June 5, 2007, as amended by the First Amendment to said agreement, dated June 17, 2008, and by the Amendment No. 2 to said agreement, dated November 4, 2008 ("the Agreement"), which agreement sets forth an alternate method of the Developer's compliance with the Inclusionary Zoning Regulations contained in Chapter 8.68 of the Dublin Municipal Code ("the Regulations") for the first 416 of the 1043 residential lots (the "Project"). Dublin RE Investors has conveyed some of the residential units subject to this Agreement to Braddock & Logan Group II, L.P., which has become a party to this Agreement. 2. The Agreement refers to the initia1247 residential units in the Project as "Part One of the Expanded First Phase." The Agreement, as previously amended, provides that Developer will satisfy its 31-inclusionary unit obligation in Part One of the Expanded First Phase (a) by constructing (i) 9 integrated inclusionary units (single-family homes) on 3,200 square foot lots, which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), and (ii) 17 1-bedroom, secondary dwelling units, which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"); (b) paying fees in lieu of construction for the remaining 5 unit obligation; (c) making a community benefit payment prior to issuance of each building permit equal to $958.77 (which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); (d) including rear yard landscaping and energy efficiency measures to reduce the homeowners' cost of living in the 9 integrated inclusionary units; and (e) incorporating green building principles into the 26 inclusionary units. 3. The Agreement, as previously amended, requires the income levels of the 26 inclusionary units in Part One of the Expanded First Phase to be as follows: 8 very low-income units (8 1-bedroom Secondary Units); 121ow-income units (3 four-bedroom Integrated Units, and 9one-bedroom Secondary Units); and 6moderate-income units (6 four-bedroom Integrated Units). 4. Developer, following further discussions with City staff, has proposed to increase the number of inclusionary units to be constructed in Part One of the Expanded First Phase by five Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16. 2009 ATTACHMENT 2 23~~ a~~ units thereby eliminating the payment of in-lieu fees for the First Phase, to reduce the number of inclusionary units in Part Two of the Expanded First Phase by five units, and to change the inclusionary unit mix of the 31 units in Part One of the Expanded First Phase by (a) eliminating (i) two low-income integrated units; (ii) two low-income second units; and (iii) five moderate- income integrated units, (b) increasing the number of very low-income secondary units by 14 (which includes the five additional inclusionary units), and (c) changing the size of 21 of the very low-income, secondary units from 1 bedrooms to studios. 5. Accordingly, Developer has proposed to satisfy its 52-unit inclusionary unit obligation for the Expanded First Phase by: a. Constructing a total of 31 inclusionary units in Part One of the Expanded First Phase as follows: (i) 2 integrated inclusionary units (1 moderate-income unit and llow-income unit), which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), (ii) 71ow-income, 1 bedroom secondary units and 22 very low-income, secondary dwelling units (21 studios and 1 1-bedroom), which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"); b. Constructing a total of 21 inclusionary units in Part Two of the Expanded First Phase as follows: (i) 9moderate-income, integrated inclusionary units, which would be affordable in perpetuity, rather than for 55 years as the Regulations require ("the Integrated Units"), (ii) 12 1-bedroom, very low-income secondary dwelling units, which would be rental units and affordable in perpetuity, rather than for 55 years as the Regulations require ("the Second Units"); c. Making a community benefit payment prior to issuance of each building permit equal to $958.77 (which amount is calculated based on the proposed $1,000,000 contribution divided by the 1,043 units proposed in the Project); d. Including rear yard landscaping and energy efficiency measures to reduce the homeowners' cost of living in the Integrated Units; and e. Incorporating green building principles into the inclusionary units, by obtaining 52 points for unit on the "Single Family GreenPoint Checklist, which exceeds the City's 50-point requirement under the Green Building Ordinance. 6. The City is agreeable to the amendment proposed by the Developer, and the City Council hereby finds that the alternate method of complying with the Regulations for the 416- unit Expanded First Phase meets the purposes of the Regulations. NOW, THEREFORE, Developer and City for themselves and their respective successors and assigns hereby agree as follows: Section 1. Amendment of Section 3 of the Agreement. Section 3 of the Agreement is amended to read as follows: Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16.2009 2~5~ja~~ " 3. Developer's Compliance with Affordable Housing Obligation. Developer intends to complete the Project in multiple phases. Section 8.68.030 of the Regulations requires that all affordable units in a project be constructed concurrently with a project or phase of a project. The City hereby finds that adherence to the following schedule of construction for the Inclusionary Units would constitute construction of the hnclusionary Units concurrently with the market rate units in the Project as required by Section 8.68.030 of the Regulations. a. Part One of Expanded First Phase (Initia1247 Residential Parcels). Developer has identified a 247-lot portion of the Project, which is depicted in Exhibit 2, that is referred to herein as "Part One of the Expanded First Phase." Developer will satisfy its Affordable Housing Obligation for Part One of the Expanded First Phase by (a) constructing 31 Inclusionary Units (one (1) 1-bedroom, very low- income, Second Unit; seven (7) 1-bedroom, low-income Second Units; twenty-one (21) studio, very low-income Second Units; one (1) 4-bedroom, low-income Integrated Unit; and one (1) 4-bedroom, moderate-income Integrated Unit; (b) making a $958.77 community benefit payment prior to issuance of each building permit in Part One of the First Phase as provided in Section 5 of the Agreement. Exhibit 3 shows, in two separate diagrams, the location and type of the Inclusionary Units to be constructed within Part One of the Expanded First Phase. The City finds that the preliminary construction schedule attached hereto as Exhibit 4, which shows the completion of the 31 Inclusionary Units along with 216 market rate units, constitutes construction of the Inclusionary Units concurrently with the market rate units as required by Section 8.68.030 of the Regulations. b. Part Two of Expanded First Phase (Subsequent 169 Residential Parcels). Developer has identified a 169-lot portion of the Project, which is depicted in Exhibit 2, that is referred to herein as the "Part Two of the Expanded First Phase." Prior to development on, and approval of subsequent final maps that include, Part Two of the Expanded First Phase, Developer shall have received the approval of the Community Development Director of (a) a Diagram of Location of Additional Inclusionary Units in the Expanded First Phase of the Project, in a form similar to Exhibit 3 attached hereto ("the Subsequent Location Diagram") and (b) a preliminary construction schedule for the subsequent phase of the Project ("the Subsequent Construction Schedule"), in a form similar to Exhibit 4 attached hereto. Upon the Community Development Director's approval, the Subsequent Location Diagram and the Subsequent Construction Schedule shall be added to, respectively, Exhibit 3 and Exhibit 4 to this Agreement with respect to the Integrated Units to be constructed in connection with Part Two of the Expanded First Phase. In approving the revised Exhibits 3 and 4, the Community Development Director shall find (a) that the revised Exhibit 3 shows 12 additional very low-income, Second Units and 9 additional moderate-income, Integrated Units; (b) that adherence to the revised Location Diagram and the revised Construction Schedule would constitute construction of 21 additional Inclusionary Units concurrently with Part Two of the Expanded First Phase and (c) that the 21 Inclusionary Units are "reasonably dispersed" throughout the Expanded First Phase, as required by Section 8.68.030.E of the Regulations. Developer hereby agrees that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16. 2009 Z~U ago maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase) until such time as it has satisfied the requirements of this Subsection. c. If the Building Official or Community Development Director determines that the Inclusionary Units have not been or are not being constructed concurrently with the market-rate units as required by this Section 3, the Building Official shall withhold further issuance of building permits in Part Two of the Expanded First Phase until construction of the Inclusionary Units in the phase has been completed to the satisfaction of the Community Development Director. Notwithstanding the foregoing, Developer shall be permitted to deviate from the preliminary construction schedule in Exhibit 4, provided that Community Development Director finds that the Inclusionary Units are constructed concurrently with the market rate units as required by Section 8.68.030 of the Regulations. Section 2. Amendment of Section S of the Agreement. Section 5 of the Agreement is amended to read as follows: "5. Community Benefit Payment. Developer hereby agrees to make a $958.77 community benefit payment prior to issuance of the building permit for each residential unit in the Expanded First Phase, excepting Secondary Units. The community benefit payment required by this Section shall be in addition to the $2,396.93 community benefit payment required by the Development Agreement for the Fallon Village Project between Developer and the City, dated December Z0, 2006." Section 3. Amendment of Subsection 6.D of the Agreement. Subsection 6.D of the Agreement is amended to read as follows: "D. Green Building Principles. Construction of the Integrated Units and Secondary Units shall incorporate Green Building Principles by obtaining 52 points on the Single Family GreenPoint Checklist," attached hereto as Exhibit 5." Section 4. Amendment of Section 7 of the Agreement. Section 7 of the Agreement is amended to read as follows: "7. Unit Bedrooms and Size. The size of the Inclusionary Units shall be consistent with the Site Development Review approval of the Planning Commission, provided however, that minor changes to unit size maybe approved by the Community Development Director through a Site Development Review Waiver. The Developer proposes to provide in Part One of the Expanded First Phase: A. 29 very low-income units (8 1-bedroom Secondary Units and 21 studio Secondary Units); B. llow-income, four-bedroom, Integrated Unit ;and C. lmoderate-income, four-bedroom Integrated Unit. Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16.2009 The developer proposes to provide in Part Two of the Expanded First Phase: A. 12 very low-income units (12 1-bedroom Secondary Units); B. 9moderate-income, Integrated Units. The City hereby finds that, while this breakdown does not reflect the range of numbers of bedrooms provided in the Expanded First Phase as a whole, as required by Section 8.68.030.E of the Regulations, the Developer's alternate method of compliance meets the purposes of the Regulations." Section 5. Revised Memorandum ofAgreement to Be Recorded. Developer and City shall execute and acknowledge a revised Memorandum of this Agreement ("Memorandum") substantially in the form attached hereto as Exhibit C, and City shall cause the Memorandum to be recorded in the Official Records of Alameda County upon its execution. This Memorandum shall supersede and replace the Memorandum referenced in the Original Agreement. Section 6. Amendment of Exhibit 3 and Exhibit 4. Exhibit 3 and Exhibit 4 of the Agreement are hereby replaced with Exhibit A and Exhibit B to this Agreement. Section 7. All other provisions of the Agreement shall remain in effect. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN DUBLIN RE INVESTORS, LLC a California limited liability company Joni Pattillo, City Manager Attest: i ~ ~~ ~~ ~ Caroline Soto, City Clerk Approved as to form ~fC_ ~~ ~i-~ John Bakker, City Attorney By: Braddock and Logan Services, Inc. a California corporation Its Manager . y~ Name: ?rc.FF t-.pk,.~~Ev.lt-~ BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 1 G. 2009 ~~~~ a~~ D~ + Name: ~ Ff 1-A W +2 E ~L~ ~I' ~~. E P K E:S ~ n ~ n1'( 1228984.3 Amendment No. 3 Affordable Housing Agreement First Phase of Positano Project June 16.2009 ~,3c 27~ CALIFORNIA ALL-PURPOSE ACK9+lOWLEDGMENY - .cY-rF:~ r.~,~.~ ~~~cSr.~rc~~cc~~.c=r ~^ - .i=r~--nFr~ - .c'~.c c.~r=r,~-r - ..~~-.€r-r.~.^~.i~•<~.r2r.~-~.irc~,r-rcr State of California County of Contra Costa On ~ Cs ~ before me, Nancy E. Embrey, Notary Public Oate /~' Here Insert Name and Tilk of the OKcer personally appeared ~~ F F ~ ~ +~-~• ~. Name(s) of Signer(s) WIINCY E. EMBREY~ _ Commbalon al- 1578043 "~ Notary Public • CaNfomla ~_ Coniro Costa County My comm. Expkea Jun a, 2009 Placa Nolary Seal Above who proved to me on the basis of satisfactory evidence to be the personi~ whose named/~ subscribed to the within instrument and acknowledged to me that ie he/the9 executed the same it hi hetk~ieir authorized capaciry(h~, and that byt~~ir signature) on the instrument the person), or the entity upon behalf of which the person ,~ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ~- ~ ' SignaWre of Nolary Public OPTIONAL Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of AttachedmmDo_c--ument Title or Type of Document: F/~V~` CJ Document Date: ~ /1~ ` ~ Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): - ^ Partner - ^ Limited ^ General ^ Allorney in Fact O Trustee ^ Guardian or Conservator ^ Other: Signer Is F 'Jw~~ r.. Number of Pages: Signer's Name: ^ Individual U Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Tou or thurr~ here ®2007 Nalionel Nolary ASSOCfe6on• 9350 De Salo Ave, P.O Box 2402 • Chalsvnxth, CA 9131&2402• www.NalioreiNoleryorg hem x5907 Reorder: Cell Toll-Free 1-800-076.6027 2 c.F® Z ~ a EXHIBIT A Revised Exhibit 3 to the Agreement ["Diagram of Location of Inclusionary Units in the First Phase of the Project"] a O ~z/ W ~ ~ _ G C ~ ~~' a/ z ~ o P .-. °' ~Z • N v ~~ ~ M ~~~ ~ j N ~ 3 ~.y ~ o> O ~G1 ~ o ' t ~ r~ 0 ~ ~:a~ ~ r v, .W3Gp v~ ~ ~ wa aOW a ~ • r w ~j `~ ~ ~ o ..~. ~ A V ` " ~ o r E .. ~ E a~ > ~ ' S ~ ~ oa a° oo ~ ~ g „~ c _"a p i `° ~ .5 w° oA w a ° O m i a0 ~$ v~ ~~ ~ Q C ~ ~ z ~ ~e y oN ~,~ ~ c ~ ~ r~ ~ ~ J .~ 6 ..1 0. ~ ,'~ S ~ Q, "vi ra ~i A V1 0. / 0 o a ~ * ~ `~ ~ -® ~® 5~~ 0 0 N c} ~!® NO ~'~ 7 .+, ® N ~ _~ ~ ~ S N a Kr A r nn V' U 3e ° N~ © ~ ® Nl h ~ N ~ N~ N1 M ® N ~33~1 C.rw 5 bin b N® Z ~ ~o Na 0 ~ Vl N© ° ® W HI ~® ~ M ^r M ~ ~O hO M~1 n `~ ~~",~ ~ ® ~ J 3~ bb -, ~ JS .~ ~~ H v `emu a ~0 a F O z ti Q ~_ ~ ` ~ ~ 0 ~' 4 °~ O O ~ B~ a a ~~ a ~^F' ~~ f ,~ U :~ ~~_~~ a ~~ ~ ~~ ~ d S ~ ® N ~ ~?? ~~' Z z ~ o ~.w ~ o ~~ yy~d~ di ~ u 34 0 'C~ ~ .J ~ e "e w ~ G 90.~J6 1R~N LN 5 N ~ ~ A R ~ ~ ~ "~O ~ ~~~0 O ~~p~T a R ~ '~ L v 9 ~j A ~ ~ N o 0 ~ i a_ g S ~ t ONYIINOW ~ k R :. y ~~ 3 ~b / ~ .,F ~ R ONl(3'IV5 3 J I ~ ~ ~d~ i A ~ 3 9 9 ~ ~ ~ ~ ~ r ~ B~6 yy, ~ a ~r~ ~ g~3 ~ ~ ~x m A i 3 4 ?~ ~ ~~`, a R r CERRETO q YYY ,°' 'ri z ~ ~ i r ~ i ,~ z m ~ ~ ~ a O ~ .~', V O X O~ ~ w g ?` ~ ~ = o ~' f c a .%i N CE o0.`J~ ~ °o EX' BQ,t ~ ~ ~~ i ;~~~2~~ ~ 3 r,3~ Zoo EXHIBIT B Revised Exhibit 4 to the Agreement ["Preliminary Construction Schedule"] ~,~.~ Zia -~ r c ~r V V ~+ H C O V ea .~ a as N t0 s a w ~_ LL O C O a C d '~ C d a M N N OO O t0 O O ~ O m ~ M N i~ \° ~ m +~ O N O O ~ 0 ~ F~ ~ 0 ~ O ~ O r N d J .- ti 0 00 °n\j y ~ ' - O O r N 0 a m °o °o ° ~ t O i ~ ~ 0) p ~ c ~ = ~ m y R •m m ~ ~ ~ r a z z ~ c c 41 m m m > c m ~ ~ ~ 0) J ~ ~ O .a ~ w m m ~ C C ~ _ ~ ~ V c R ~ R ~ m ~ ~ m rn + ° a W z O W y Q a N ~ 0 0 0 ~ o H 0 r m ~ N t~G O~O \° p ~ `~ m 0 0 0 0 0 F- N 0 J 0 0 0 0 m J 0 0 0 0 w ~ 0 0 0 0 0 0 a m ° a O o '~ ` ~ O = O O ~ ~p ~ .c am s ~ ~ ~ im~pp ~ r ~v •m ~ ~ ~ ~ L a z Z g = c ~ c m df m m > c ~ ~ ~ ~ 0) 0) s+ w ~ R m tl ~ .~ V _ ~ ~ ~ in v~ F°- a 3~ F- W Q 2 a N 0 0 0 m ~ N O c p m O H N 0 J m J r0+ m a 0 a m f f ° a ~ ~ s z 2 0 0 ~ i a i a J ~ ~ d1 ~+ r. Y Y O ~ ~ W 2 F- W Q a ~ .~ z?o 2~ ~ 27~ EXHIBIT C Revised Memorandum of Agreement for the Construction of Inclusionary Units ~~~ ~~ Z7o RECORDING REQUESTED BY CITY OF DUBLIN When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 .~~~~<, o °°; 2009210221 01101!2009 04 ; 00 PM OFFICIAL RECORDS OF ALAMEDA COUNTY PATRICK O'CONNELL • °~tscAw~* RECORDING FEE: 0.00 ~_~c9,_-. PGS ®F'~( of Document Recorded Space above this line for Recorder's use MEMORANDUM OF AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. First Phase (416 Residential Lots) of the Fallon Village Project This Memorandum of Affordable Housing Agreement for the Construction of Inclusionary Units and the Payment of Fees In-Lieu of Constructing Inclusionary Units (this "Memorandum") is entered into on this 16th day ofJune, 2009, by and between the City of Dublin, a municipal corporation (hereafter "City") and Dublin RE Investors, LLC, a California limited liability company, and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). 1. ..Pursuant to the Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units, dated as of June 5, 2007, and as amended on June 17, 2008, on November 4, 2008, and on June 16, 2009, by and between City and Developer (the "Agreement"), the Parties have set forth their respective obligations with respect to the provision of affordable units on lands presently owned by Developer, a portion of the 1043 residential parcel Positano Project (the "Project") ,and more specifically described in Exhibit A (the "Property"); These obligations run with the land. 2.. The Agreement sets out the specific obligations for the construction of Inclusionary Units and payment of fees in lieu thereof in conjunction with the initia1416- residential parcel phase of the development of the Project ("the Expanded First Phase"). It also obligates the Developer to make a Community Benefit Payment, as described in the Agreement, prior to issuance of building permits for each residential unit (excepting Second Units) within the Expanded First Phase. Development on, and the City's approval of subsequent final maps that include, any portion of the Property beyond the Expanded First Phase shall require either an amendment to this Agreement or a subsequent affordable housing agreement ("the Subsequent Agreement") setting forth the manner in which the Regulations will be complied with for the remainder of the Project. The Agreement also contains the Developer's covenant, on behalf of ~x~-~bc~ ~~ 2~v itself, and its successors and assigns, that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase) until such time as it has entered into the Subsequent Agreement. 3. Developer and City have executed and recorded this instrument to give notice of the Agreement, and the respective rights and obligations of Developer and City. The unrecorded Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees in Lieu of Constructing Inclusionary housing Units is incorporated by reference in its entirety in this Memorandum. 4. This Memorandum shall bind and inure to the benefit of the parties and their respective heirs, successors and assigns, subject.however to restrictions set forth in the Agreement regarding assignment. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN B ~ ni Pattillo, City Manager Attest: F ~~ P. ^~ Caroline Soto, City Clerk Approved as to form ~~„ John Bakker, City Attorney DUBLIN RE INVESTORS, LLC a California limited liability company By: Braddock and Logan Services, Inc. a California corporation Its Manager Name: FFF I„Au.) 2C~~-C s: ~1~cG P(ZCs ~ o~,,.t~ BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner ame: REF F -~A~,2E,Jc.E Its: V~~C- P!~~sioE~ z 4~~ ~~~D State of Califomia/~ f County of !-~.~ (Lti'Vl ~ Cd ~ _ _ On Date personally appeared before me, CAROLINE P. SOTO Conxr~alon ;91691321 ~ Notary PuL~Ac - Ca6fortYa Alameda CeuMy My Comm. Expkea Sep 2,201 ~ ~~ ~c,~ o . I~r~-ct,-v ~.r Pv b I i c. who proved to me on the basis of satisfactory evidence to be the person( whose name(s) is/ar$ subscribed to the within instrument and' aclmowledged to me ~ that ~-~e/she/tbey executed the same in f~is/her/tlaeir authorfzed capacity(lQS), and that by~klis/hedtf~eir signature(s) on the -instrument the person(ej, or the entity upon behalf of which the person(ej 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 and and officpial seal. Signature ~~ / ~~ ' Place Notary Seal Above Signature of Notary Puh6c OPTIONAL Though the frrformation below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document T'~le'orType of Document Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer - TiUe(s): - ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other. Signer is Representing: Top of thumb here Number of Pages: Signer's Name: ^ Individual. ^ Corporate Officer - Title(s): _ ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other. Signer Is Representing: Top of thumb here O 2007 National Notary Asoda9ar • 935D De Soto Ave, P.O. Boz 2402 • Chatswulh, CA 813132402 • vrurvtNatbnaAJotary-ag Item !5907 Reorder: CaBTaA-Aee 1-800~87G-66a ,~ ~ z~ao State of California County of Contra Costa On ~ 5 Q ~ before me, Nancy E. Embrey, Notary Public Dale n Here In""seat Name and Title of the ONicer ~ personally appeared ~ E-~ ~ I1A" (.,>J ~ ~ /v ~ ~ "'- Name(s) of SlOner(s) who proved to me on the basis of satisfactory evidence to be the person`f~ whose name subscribed to the NANCY E. EM1NtEY _ Cornmisslon #t 1578043 Notary Publk - Ca®tornla Conhla Costs County My Comm. Explr~ Jut 8, 2009 thin Instrument and acknowledged to me that ~i~~skte/t#tey executed the same i is 'authorized capacity~s}, and that by is ignature'~}- on the instrument the person~j, or the entity upon behalf of which the person acted, executed the instrument. 1 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~a-- Placa Notary Seal Above lure of Notary Pubic OPTlON,14L Though the information below is not required by law, /t may prove valuable to persons relying on the document and could prevent fraudulent removal end reattachment of this /arm to another document. bescription of Attached Document ~ ~ ~ ~~ - ~~~ ~(' ~~ Title or Type of Document: Document Date: CD l f (o ~ ~ Signer(s) Other Than Named Above: Number of Pages: Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer-Title(s): - ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other. __ Is RI Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: s Top of lhurnb here ©2007 National Ndary Asaodetian- 9350 De Sob Ave., P.0 Box 2402 • Chatsworth, CA 91313-2402• www.NetiadNoteryorg Nem N5907 Reorder: CaIIToA-Free t-t30D-fr766927 _ z~is~ zoo ~~ uA ~s Page Y of 4 • ~ 19149-10 10/2111008 • ~ MW/SK FALCON VII~LAGE PROPERTY ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE CITY OF DTIBLIN, COUNTY OF ' ALANIEDA, STATE OF CALIFORNIA, BEING ALL OF THE NORTHWEST QUARTER OF SECTION 35 AS DESCRIBED IN SERIES No. 2003-10$250, ALAMEDA COUNTY RECORDS, AS WELL AS A PORTION OF THE SOUTH HALF OF SECTION 27 •AS SHOWN ON PARCEL MAP 9208 RECORDED • ~1 BOOK 292 OF MAPS PAGES 16-17, ALAMEDA COUNTY RECORIIS AND A PORTION OF THPs • NORTH HALF OF SECTION 34 A5 SHOWN ON SAID PARCEL MAP 9208, LYING WI1T~1 TOWNSHIP' Z SOUTH, RANGE i EAST, MOUNT DIABLO BASE AND MERIDIAN, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL 1 BEGINNING AT THE COMMON QUARTER•CORNER OF SECTIONS 26 AND 27 AS SHOWN ON SAID PARCEL MAP 9208; ALONG THIr SECIION LINE COMMON TO SAID SECTIONS 26 AND 27, SAID SECTION LINE B1;ING ALSO THE WESTERLY LINE OF THE LANDS OF Mi?EHLHAUSER, RECORDID IN SERIES No. 2002-097480, ALAMEDA COUNTY RECORDS, SOUTH 00°48'41" WEST 2;642.65 FEET, TO THE COMMON SECTION QORNER OF SECTIONS 26, 27, 34, AND 35; • . THENCE ALONG THE COMMON SECTION LINE OF SECTIQNS 34 AND 35, SAID SECTION LINE • BEING ALSO THE WESTERLY LINE OF DUBLIN RE INVESTORS, LLC, SERIES Na 2003-108250, ALAMEDA' COUNTY RECORDS, SOUTH OO°44'28"' WEST 2,635.93 FEET', TO THE COMMON QUARTER CORNER OF•SECTIONS 34 AND 35; ' THENCE ALONG THE EAST-WEST QUARTER SECTION LINE ENTERING SECTION'34, SAID • . EAST-WEST QUARTER SECTION LINE BEING ALSO THE NORTHERLY LINE OF FIRST AMERICAN TITLE GUARANTY CO., SERIES No. 98388140, ALtLbfEDA COUIyTY RECORDS, NORTH 89°51'52"~ WEST 2,651.00 FEET TO THE SOUTHWEST CORNER OF PARCEL "A" A5 SHOWN ON SAID PARCEL MAP 9208; • THENCE LEAVING SAID EAST-WEST QUARTER SECTION LINE ALONG THE WESTERLY LINES OF SAID PARCEL "A", THE FOLLOWING SDC (6) COURSES: 1) NORTH 33°4520" WEST 12891 FEET; ' ' 2) NORTH 22°56'58" WEST 83.13 FEET; •• • 3) NORTH 10°41'42" WEST 61.76 FEET; 4) NORTH 03°58'13" WEST 101.75 FEET; S) NORTH 03°49'18" EAST 159.00 FEET; AND • 6) NORTH 30°3537" WEST 33.48 FEET; • _ THENCE LEAVING SAIp WESTERLY LINE OF SAID PARCEL "A"ALONG THE WESTERLY LINE OF PARCEL "A", PER No. LLA 07-01 SERIES No. 2007-200949, ALAMEDA COUNTY RECORDS TFiE,FOLLOWING THIRTY-NINE (39) COURSES: ' - P:\19149UegaLsVORDAN-AGMI'-LEGALS\I.EGAL-0VIItALLdoc ' 19149-10 10/lllZ008 • MW/5K EXFZCBI'i' "A" . Page Z of 4 1) SOUTH 56°40'50" WEST 92.39.FEET TO THE BEGINNING OF ANON-TANGENT CURVE TO .THE LEFT; . . 2) ALONG SAID NON-TANGENT CURVE TO THE LEFT, FROM WHICH THE RADIUS POINT BEARS SOUTH 66°40'50" WEST, HAVING A RADIUS OF 1,100.00 FEET; TH_ ROUGH A CENTRAL ANGLE OF QSp 19'52", FOR AN ARC DISTANCE OF 102.35 FEET; 3) NORTH 28°39'03" WEST 58.57 FEET TO T~ $EGINNING OF A CURVE TO THE RIGHT; 4) ALONG SAID CURVE TO THE, RIGHT HAVING A RADIUS OF 80.00 FEET, THROUGH A CENTRAL ANGLE OF ,11°47'55'; FOR AN ARC DISTANCE OF 16.47 FEET; TO A POIIV'I' OF REVERSE CURVATURE; . ' 5) ALONG SAID REVERSE CURVE HAVING A RADIUS OF 150.00 FEET, THROUGH A CENTRAL ANGLE •OF 54°01'09", FOR AN.ARC DISTANCE OF 141.42 FEET; . 6) NORTH 70°52'17" WEST 6.55 FEET TO THE BEGINNING OF A CURVE TO THE LEFT 7) ALONG SAID CURVE TO THE LEFT HAVING A RADIUS OF X20.00 FEET, THROUGH A CENTRAL ANGLE OF 19°OT43", I:OR AN ARC DISTANCE OF 40.06 FEET; ' 8) NORTH 90°00'00" WEST 189.85 FEET TO THE BEGINNING OF ANON-TANGENT CURVE TO THE LEFT; 9) ALONG SAII) NON-TANGENT CURVE TO THE LEFT, FROM WHICH THE RADIUS POINT ' BEARS SOiaTH 89°ST24" WEST; HAVING A RADIUS OF 886.00 FEET; THROUGH A CENTRAL ANGLE OT+ 32°31'05", FOR AN ARC DISTANCE OF 502.85 FEET; ip) NORTH 53°02'51" EAST 195.67 FEET; ~ _ 11) NORTH 28°OT47" EAST 284.00 FEET; 12) NORTH 49°41'57" EAST 122.85 FEET; TO THE BEGINNING OF A CURVE TO THE RIGHT; 13) ALONG SAID CURVE TO THE RIGf1T HAVING A RADIUS OF 42.00 FEET, THROUGH A CENTRAL ANGLE OF 59°26'40", FOR AN ARC DISTANCE OF 43.58 FEET; 14) SOUTH 70°51'23" EAST 49.05 FEET; 15) SOUTH 75°22'09" EAST 45.89 FEET; 16) NORTH 90°00'00" EAST 58.47 FEET; 17) NORTH 69°08'47" EAST 31.73 FEET; 18) NORTH 58°52'28" EAST 119.88 FEET; 19) NORTH 10°4T11"WEST 268.63 FRET; ~0) NORTH 07°19'39" WEST 250.02 FEEL ; Zl) NORTH 20°43'33" WEST 90.89 FEET; - P:119149UepLtiVORDAN-AGNfT-LEGALS~LEGAL-0VEILAI.I..doe ~ ~ ' 253 ~ Z7a 19149-10 l OCL1R008 MW/SK . ~ E.ISIBIT "A" . ' Page 3 of 4 22) NORTH 12°41'35'" WEST 30.86 FEET; 23) NORTH 00°44'30" WEST 120,97 FEET; 24) NORTH 17°41'12" WEST 147.19 FEET; • • • 25) NORTH 00°19'22" WEST 106.46 FEET; • 26) NORTH 17°50'10" EAST 64.19 FEET; 27) NORTH 02°18'30" EAST 8136 FEET; 2$) NORTH 16°41' 10" EAST 51.40 FEET; 29) NORTH 37°18'42" EAST 65.35 FEET; 30) NORTH 21°23'28" EAST 200.71 FEET; 31) NORTH 71°06'39" WEST 99.04 FEET; 32) NORTH 50°.42'23'" WEST 48.07 FEET; 33) NORTH 21°32'10" WEST 88.4A FEET; - 34) NORTH 14°25'13" WEST 13428 FEET; 35) NORTH 10°ST46" WEST 96.03 FEET; 36) NORTH 00°39'24" EAST 140.5D FEET' TO THE BEGINNING OF A CURVE TO THE RIGHT; 37) ALONG SAID CURVE TO TH$ RIGHT HAVING A RADIUS OF 291.02 FEET, THROUGH A CENTRAL ANGLE OF 49°58'40", FOR AN ARC DISTANCE OF 253.85 FEET; • 38) NORTH 71°20'52" EAST 82.05 FEET; AND • _ 39) SOUTH 52°39'14" EAST 39.69 FEET; TO TIDE WESTERLY LINE OF PARCEL "D" AS SHOWN ON SAID PARCEL MAP 9208; THENCE AL(}NG SAID WESTERLY LINE OF PARCEL'" THE FOLLOWING TWO (2) BOURSES: •. 1) • NORTH 48°4828"EAST 1,73956 FEET; 2) NORTH 00°09'11" WEST 235.96 FEET TO A .POINT ON THE QUARTER SECTION LINE OF SAID SECTION 27, SAID QUARTER SECTION LINE BEING ALSO THE 50UTHERLY LINE OF ACACIA PARTNERS II, SERIES No. 2005-037868, ALAMEDA COUNTY RECORpS, AND THE NORTHERLY LINE OF SAID PARCEL "D"; . THENCE ALONG SAID QUARTER SECTION LINE SOUTH 89°40'26" EAST 1,485.76 FEET; TO SAID POINT OF BEGINNING. CONTAIl~tING 328.58 ACRES, MORE OR LESS. ' P.U 9149UegalsUORDAN-AGMI-1.$GAISILEGAL-0VERA.LLdoc • 19149-10 10/21/20D8 MW/SK . F.~TBIT `~A„ Page 4 of 4 PARCEL 2 ~ ' BEGINNIlVG AT THE COMMON CORNER OF SECTIONS 26, 27, 34, AND 35 ALONG TI•~SECTION LINE COMMON TO SECTIONS 26 AND 35, SAID SECTION LINE ALSO BEING THE SOUTHERLY LINE OF THE LANDS OF MUEHLHAUSER, RECORDED IN SERIES No. 2002-097480, Ai~.1ME1?A , COUNTY RECORDS, SOUTH 88°43'28" EAST 2640.Cr1 FEET TO THE NORTH QUARTER CORNER OF SECTION 35; THENCE ALONG THE NORTH SOUTH QUARTER SECTION LINE OF SAID SECTION 35, SAID . QUARTER SECTION LIl~FE BEING ALSO THE •WESTERLY LINE. OF ?,CACIA PARTNERS I, LLC. RECORDED IN SERIES No. 2001-037867, AI.AMEDA COUNTY RECORDS, SOUTH 00°55'27" WEST ' 2636.26 FEET TO THE G'ENTER QUARTER CORNER OF SECTION 35; THENCE ALONG THE EAST-WEST QUARTER SECTION LINE OF SAID SECTION 35, SAID QUARTER SECTION LINE BEING ALSO THE NORTHERLY LINE OF,THE LANDS OF CROAK, • RECORDED IN SERIES No. 79-?29985, AI,AMEDA COUNTY RECORDS; NORTH 88°43'19" WEST 2631:95 FEET TO THE WEST QUARTER CORNER OF SECTION 35; THENCE ALONG THE COMMON SECTION LINE OF SAID SECTIONS 34 AND 35, BEING ALSO THE EASTERLY L'1NE OF PARCELS "C" AND "D'; OF PARCEL MAP 9208 RECORAED•IN BOOK . 292 OF MAPS: PAGES 16-17, ALAMEDA COUNTY RECORDS; NORTH 00°44'09" EAST 263621 FEET TO SAID I'OIN1` OF BEGINNING. 'BEARINGS, DISTANCES AND AR$A CALCULATION ARE BASED ON RECORD OF SURVEY No. ,1675, BOOK 25 RECQRD OF. SURVEYS PAGES 31-32 ALAMEDA COUNTY RECORDS. CONTAINING 15954 ACRES, MORE OR LESS. END OF DESCRIY'I•ION. TffiS DESCRII'TION IS FOR THE PURPOSE OF AN EJ03~TT ONLY AND DOES NOT . CONSTITU~'E A LEGAL DESCRIPTION FOR THE PURPOSES OF CREATING NEW • DIVISIONS OF LAND OR CONVEYANCE. - ' t~AC~Y~so~n~s ~ .: ~ ~ . CPllll BVGINEERING'l1~WD p1ANMNG•IAND SURVEIING 5142 Frat~rr Drive Suite 8, PieGSarton. CA 9456&$355 ' (925) 225-0690 P:11914911ega1sVORDAN-AGMT-I.E[.at ~r FGAI.-0VERALL.doc Z~S.~ Zia ' 7.25.,iRt1:. NOTE: BEARINGS AND DISTANCES - M D ~ B M WITHOUT ~AN ASTERISK(.) WERE TAKEN 22 ~ 23 • FROM RECORD OF SURVEY N0. 1005 - • ---I---~ ACACIA PARTNERS U, LLC. 27 ; 2s ~ SERIES No. -2005-o37a53 ' ACACIA PARTNERS ~ ~ ~ APN 905-0003-Q]4-03 ~ SERIES No. 2005-037303 -.' APN say-o0za-o01 . , i~ POB ~ N89°4026"W 1485.76' i PARCEL 1~ -------~--------------------- - -- -------------------------_r---- - I PARCEL Z h~ ~~ 5 95 W ~ ~ 1/4 • CORNER • OF ~ PM x327 ~,~~~i ~ SECTIONS 26 & 27 ~ry B1C. 29$ PM P. ld-l7 ~ ~ PARCEL 'D' D.S.R.S.D. ~ ~~ ~ PM 9208 ~ ~~°„ ~ SERIES Nn. 2002-U97430 i "'-. ,'-' ~ APN 905-f)~J03-0] 2 ~ HBZ92 M PGi6-17 ~..r~ ~ . PARCEL F 313.91t• AC. =- ~ , TRACT 7253_ ~' o ~ 'NOTE: BEARINGS AND DISTANCES WITH ~ BK.Z53 M P.73-7B j ~ ~ PARCEL A ~ ~ AN ASTERISK(k) FOR THE NW 1 /4 OF `.. No. I.IA 07-01 . z ~ SECTION 35 WERE TAKEN FROM ~ `~~-"---^~~' ,+' SERIES No. 2007-200949 RECORD OF SURVEY. N0. 1675# i ~ / ~ `~~ ~'14.87t AC. ~ ~ • l ( . , D !1 B L I N ~ ti ~' PARCEL 'B' 27 26__ -N88'43'28•W 2640.61't 1 s ~ "------- R A N C H i t ` _ ~ % ~ ~ , 85 POB PARCEL' 2. .• t .. i '` ~ o r ~ DIIBLIN~ ' ~, ~_•.~ ~~---~ ` /, '~ / ~~ L~ :~, .. RE INDESTOR3,• I.LC 1 ~y~ ;.~ I :- • SERIES No. 2003-108250 ~ : ~ ~ • ~~ ~ . ~ ~ ~ . ROS N0. 1875 ~cD., I ~ ~ o -~ M BH25 R.0.5. PG31-32~ ~ - ~ o ~' ~' ~ ' I .- N ~ N APN 905-0002-003 - ~ I rs ~ N . i ~.____ `°W° I ~ 159.54f AC, WI z "'°o $ ~ a NW 1 /4 SECTION 35 N '" "' ,n x . PARCEL 'C' •r ~ •~o- T. Z 5. R: ~ E.v~ ~ oa., z° ~ PARCEL 'A' ~ o I o M.D.B. ~ M. - ~.~ ~ ~, Z ~`. z ? 1/4 CORNER OF zl c~U. ,~ a C~ ~ SECTIONS 34 & 35 t a "' 1 ~ _ _ N89°51'52"W- 2651.00' _ _ =N88°43' 19"W 2631..95': FlRST AMERICAN TR1E ~ CROAK -GUARANTY CO. I SERIES No. 79-2299x5 • SERIES No. 98388140 i APN 905-0002-002 APN 9x5=0027-005 ; APN 905-0002-002-0] IJ.ORDAN RANCH) ' 0' 500' ~ 0~~' - 2000' ~~+ i ~ PAGE 1 OF 1 F 0 VILLAGE PROPERTY C1lY OF DUBUN COUNTY OF ALANE~A CALIFORNIA LEGEND -- BOUNDARY LINE ____ ---_ EX1STiNG LAT LJNE POB POINT OF BEGINNING mAC~r~so mps CML ENpNEERING•LAND PU-NNING•lANO SURVEYING Pleasanton. GI (925) - 2Z5-Ofi90 ~YYN DATE 5G1lE JDB Na CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Alameda On October 14, 2009 before me, Gaylene Burkett, a Notary Public, personally appeared oni L. Pattillo who proved to me on the basis of satisfactory evidence to be the person{s} whose name{-s-} is/~ subscribed to the within instrument and acknowledged to me that ~/she/ executed the same in his/her/dpi-r authorized capacity{-ice}, and that by his/her/t-h~ signature{-~} 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 Q O ~ ~ _~ - -' - W~ a ~ y ~ °p ~ o c c `7 Q O v ~F ~;-; 1- ~ _ Q~ ~ R+ OW s ~ O o ~a N a a ~ ~ .~f V _ ~ v¢ a ~,., W ~ N - O z 63 47 ~6 `~ W [^ V ~ _J O ~~ ~ ~O A wu, ~ ¢ ~ ~ o N ~~ ~-, v~ ~' ~ U. A ~ _ ~~ ~ a ~ `~ ~ 3 ~ fl ~ ~ 'C M ¢ y ~ 11 r ~ ~ ~ C ~ ~ d ~ ~ ~ F ` V ~ ° ~ G o~Ne. ~ ~ eP S~~PDP ~ `~'' ~L r ~ n ~ ~ ~1 Y 7 ~~`~Q H ~ ap ~ ~ ~ . ^ , (y ~ -~ ~ > , ti~~ ~~ 6 7 ~~1 ~ ~ , ~ a Jl a o.vvuHOw s ~ ~ x ~ ~ ~ ~ YQ $ ~L 3 & `\ U O Z O H O 8 ~ i ~ O m p ~ ~ ~ w o g F i ^z o ~ ~ ~ -~ a i m ~ /,`owe _--- . ~ ~ ~ wee, ,_-----_____ `I eX ~eeN~ / ~ ~ _ _ - ~~`~/ '~ ~ Attachment 3 z5~v~ RESOLUTION NO. XX - 09 ~~~7 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********** APPROVING AMENDMENT N0.4 TO THE AFFORDABLE HOUSING AGREEMENT FOR THE FIRST PHASE (416 UNITS) OF POSITANO TO MODIFY THE LOCATION OF THE INCLUSIONARY UNITS WITHIN PART ONE OF THE FIRST PHASE OF THE PROJECT (PA 05-038 AND PA 07-005) WHEREAS, Dublin RE Investors, LLC (the Developer) is the owner of two parcels of land within Fallon Village which together are known as Positano and consists of 1,043 residential units; and WHEREAS, an Affordable Housing Agreement is required by the Inclusionary Zoning Regulations of City of Dublin Zoning Ordinance (Chapter 8.68); and WHEREAS, the Developer has proposed a comprehensive affordable housing proposal to address the requirements of the Inclusionary Zoning Ordinance for the entire Positano development and said proposal includes alternative methods of compliance with the Inclusionary Zoning Regulations; and WHEREAS, the City Council held a public meeting on October 18, 2005, to review the affordable housing proposal, and the City Council directed Staff to work with the Developer to refine the affordable housing proposal; and WHEREAS, the City and the Developer subsequently entered into an Affordable Housing Agreement for the Construction of Inclusionary Units in the First Phase (247 units) of the Positano development, dated June 5, 2007 ("the First Phase Agreement") and Amended on June 17, 2008, November 4, 2008, and June 16, 2009, wherein the Developer agreed to construct a total of 52 affordable units (11 single-family detached homes and 41 secondary units); and WHEREAS, the Agreement specifies the level of affordability (moderate-income, low- income, and very low-income units are proposed), the location of the required detached and secondary units, and the phases of the Project within which the affordable units must be completed; and WHEREAS, the City and Developer are parties to a subsequent Affordable Housing Agreement to satisfy the affordable housing obligation for future phases of Positano; and WHEREAS, Braddock and Logan, on behalf of Dublin RE Investors, LLC (the Developer) has requested an amendment to the First Phase Agreement to (a) change the location of two of the secondary units and (b) make non-substantive revisions to the First Phase Agreement's provisions that require construction of the Inclusionary Units concurrently with the market-rate units. WHEREAS, the Project has been found to be Categorically Exempt from the California Environmental Quality Act (CEQA); and ATTACHMENT 4 ~~ ~~ WHEREAS, a Staff Report dated October 20, 2009, and incorporated herein by reference, described and analyzed the proposed amendment to the Affordable Housing Agreement; and WHEREAS, the City Council did use its independent judgment and consider all said reports, recommendations and testimony. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve Amendment No. 4 to the Affordable Housing Agreement for the First Phase (416 units) of Positano attached hereto as Exhibit A. BE IT FURTHER RESOLVED that the City Manager is authorized to execute Amendment No. 4 to the Affordable Housing Agreement attached hereto as Exhibit A. PASSED, APPROVED AND ADOPTED this 20th day of October 2009, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk Mayor -2- G:\PA#\2005\OS-038 B&L Stage 2 Fallon VillageWffordable Housing AgreementWHP. Phase I Amend #4\CC Reso Approving Amend No 4.DOC AMENDMENT N0.4 TO AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. First Phase (416 Residential Lots) of the Fallon Village Project THIS AMENDMENT N0.4 TO AFFORDABLE HOUSING AGREEMENT is hereby entered into this _th day of , 2009 by and between the City of Dublin ("the City") and Dublin RE Investors, LLC, a California limited liability company and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). Recitals 1. City and Dublin RE Investors are parties to an Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units, dated June 5, 2007, as amended by the First Amendment to said agreement, dated June 17, 2008, by Amendment No. 2 to said agreement, dated November 4, 2008, and by the Amendment No. 3 to said agreement, dated June 16, 2009 ("the Agreement"), which agreement sets forth an alternate method of the Developer's compliance with the Inclusionary Zoning Regulations contained in Chapter 8.68 of the Dublin Municipal Code ("the Regulations") for the first 416 of the 1043 residential lots (the "Project"). Dublin RE Investors has conveyed some of the residential units subject to this Agreement to Braddock & Logan Group II, L.P., which has become a party to this Agreement. 2. The Agreement requires, among other things, that Developer construct 31 Inclusionary Units in "Part One of the Expanded First Phase" in the locatioris depicted in Exhibit 3. Developer now desires to alter the location of two of the thirty-one units, and the City is agreeable to the proposed change in location. 3. The City is agreeable to the amendment proposed by the Developer, and the City Council hereby finds that the alternate method of complying with the Regulations for the 416- unit Expanded First Phase continues to meet the purposes of the Regulations. NOW, THEREFORE, Developer and City for themselves and their respective successors and assigns hereby agree as follows: Section 1. Amendment of Section 3 of the Agreement. Section 3 of the Agreement is amended to read as follows: " 3. Developer's Compliance with Affordable Housin>; Obligation. Developer intends to complete the First Phase in two phases, as follows. a. Part One of Expanded First Phase (Initial 247 Residential Parcels). Developer has identified a 247-lot portion of the Project, which is depicted in Exhibit 2, that is referred to herein as "Part One of the Expanded First Phase." Developer will satisfy its Affordable Housing Obligation for Part One of the Expanded Amendment No. 4 Affordable Housing Agreement First Phase of Positano Project October 20, 2009 EXHIBIT A TO ATTAC HMFNT 4 Z(~~ ~ 2~0 First Phase by (a) constructing 31 Inclusionary Units (one (1) 1-bedroom, very low- income, Second Unit; seven (7) 1-bedroom, low-income Second Units; twenty-one (21) studio, very low-income Second Units; one (1) 4-bedroom, low-income Integrated Unit; and one (1) 4-bedroom, moderate-income Integrated Unit; (b) making a $958.77 community benefit payment prior to issuance of each building permit in Part One of the First Phase as provided in Section 5 of the Agreement. Exhibit 3 shows, in two separate diagrams, the location and type of the Inclusionary Units to be constructed within Part One of the Expanded First Phase. b. Part Two of Expanded First Phase (Subsequent 169 Residential Parcels). Developer has identified a 169-lot portion of the Project, which is depicted in Exhibit 2, that is referred to herein as the "Part Two of the Expanded First Phase." Prior to development on, and approval of subsequent final maps that include, Part Two of the Expanded First Phase, Developer shall have received the approval of the Community Development Director of a Diagram of Location of Additional Inclusionary Units in the Expanded First Phase of the Project, in a form similar to Exhibit 3 attached hereto ("the Subsequent Location Diagram"). Upon the Community Development Director's approval, the Subsequent Location Diagram shall be added to Exhibit 3 to this Agreement with respect to the Integrated Units to be constructed in connection with Part Two of the Expanded First Phase. In approving the revised Exhibit 3, the Community Development Director shall find (a) that the revised Exhibit 3 shows 12 additional very low-income, Second Units and 9 additional moderate-income, Integrated Units; and (b) that the 21 Inclusionary Units are "reasonably dispersed" throughout the Expanded First Phase, as required by Section 8.68.030.E of the Regulations. Developer hereby agrees that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase) until such time as it has satisfied the requirements of this Subsection. c. Section 8.68.030 of the Regulations requires that all affordable units in a project be constructed concurrently with a project or phase of a project. If the Building Official or Community Development Director determines that the Inclusionary Units have not been or are not being constructed concurrently with the market-rate units in a particular phase, the Building Official shall withhold further issuance of building permits in the phase until construction of the Inclusionary Units in the phase has been completed to the satisfaction of the Community Development Director." Section 2. Amendment to Section 20 of the Agreement. Section 20 of the Agreement is amended to read as follows: " 20. Exhibits. The following documents are referred to in this Agreement and are attached hereto and incorporated herein as though set forth in full: Exhibit 1 Property Description of the Property Exhibit 2 Diagram of the First Phase of the Project Amendment No. 4 Affordable Housing Agreement First Phase of Positano Project October 20, 2009 Exhibit 3 Diagram of Location of Inclusionary Units in the First Phase of the Project Exhibit 4 Deleted Exhibit 5 Single Family GreenPoint Checklist Exhibit 6 Layperson's Guide to the Inclusionary Zoning Ordinance Regulations Exhibit 7 Resale Restrictions and Option to Purchase Agreement Exhibit 8 Secondary Unit Regulatory Agreement Exhibit 9 Memorandum of Affordable Housing Agreement for the Construction of Inclusionary Units and the Payment of Fees In- Lieu of Constructing Inclusionary Housing Units" Section 3. Amendment of Exhibit 3. Exhibit 3 of the Agreement is hereby replaced with Exhibit A to this Agreement. Section 4. Deletion of Exhibit 4. Exhibit 4 of the Agreement is hereby deleted. Section 5. Revised Memorandum ofAgreement to Be Recorded. Developer and City shall execute and acknowledge a revised Memorandum of this Agreement ("Memorandum") substantially in the form attached hereto as Exhibit B, and City shall cause the Memorandum to be recorded in the Official Records of Alameda County upon its execution. This Memorandum shall supersede and replace the Memorandum referenced in the Original Agreement. Section 3. All other provisions of the Agreement shall remain in effect. [EXECUTION PAGE FOLLOWS] Amendment No. 4~Affordable Housing Agreement First Phase of Positano Project October 20, 2009 "~ ~ "~~, ~1~~ ,~ 7~ IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN By: Joni Pattillo, City Manager Attest: Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney DUBLIN RE INVESTORS, LLC a California limited liability company By: Braddock and Logan Services, Inc. a California corporation Its Manager B. Name: t}t= ~~-C,*~ s: y, ~ BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner ~~ ~'FF ~,~~.vto--v~~ Its: ~ I~ Amendment No. 4 Affordable Housing Agreement First Phase of Positano Project 4 October 20, 2009 Z ~ ~F+~ ~ ~~ ~- EXHIBIT A Revised Exhibit 3 to the Agreement ["Diagram of Location of Inclusionary Units in the First Phase of the Project"] ~ ~3 3 ~" 0 ri 4 rn a a ~ C U ~~=3 ~ 3 Z ~ H o ~~_ ~ ~ 3=6~ ~ .a W V]~ ~ ~ P: O ~ X77 ., ~11 w ~ I O ~~~ F-~ a Q U ~ FW+WI ~ °{ y L9~! q a "~ ~ a ~ ~, ~ r. ~ .. o ~ ~ o r..~ :: a~ m ~ m 1 ~L a ~ ] .G r ~ .G ~ ., ~ O ~ j ~ ~ ~ ~ ~ ~ S ~ ~~ ~ ~. ~ ~" •~ ~ O ° ~ N ~ O x ~ ~ o . h-i y it O ~~ ~~ ~„ o~ ~~ ~ a ~~ w w ~ ~* ~ "' ~ ~ a ~ " .~ ~ ~ ~ 3 'd ' ~ w a ° w ~~ ° ~~ ° ~~a ~ ~ a s ~ a a 'w a ~wa ¢ ~ a ~ Q~ ~ O a ~ /..... ~©n p~ _• ~~ ~..~~. ._ Y'~ ~ ~' S v©. ,NJ~y O ~~ ; .'~ v N© '~ L-I. . ~ ~ .~ lp 7,~ .. ~ , :_ ~ _~~ "' •N ~ ; :. ,.. as ~ ~H ' .: * ~r ~'m ~ ' : v~ ~. 0 •` ~. ~~. r~, . o~, ~: °. d a Q 0 z ~I ~' a `'d ~~.. CJs .~,~0 ~~~ ~~~Q ~,, ti Q ~ ~e CY a ~ a" ~ ~ ° c ~ a e ~U~ ~, ~ o QW : ~ ~..~ E` ~j i~or N O O~ m O ® ON yy~ps~ p}L Z ] ~ ` } ~ ~ ~ ~ ~ o ~~ \~~ v ~ ~-Q ~ ~ r i ~ ~€! ~ c^ -J Q ~~ ~ Ca ww ~ ¢ o ~' a~ ~~ d a 3 ¢ v 0 ,~ m y 6~J ~ ~ 0. ~ '~ C ~~ A ~~ ,~ G gNE 0 S~App VP 7p ^~~ya C ~~ ~ ~ ~ ~ ~ ~ ~ a ~ ~ ~ d ONVLLNOW a ~ ~ R p YQ ~ _ 3 R ~~ / ~ ~, r. ~ $ ~ ~ i. i anraQ ~ a a 5 ~ ~ - ~ V %~ , ON113'1tl5 ~ ~ ~ ? ~~' ~, ~~ o ` \~ ~ ~ ~ ~ ; ; A' V ~ ~= .o ~ g 7 7 i ~ ~ ~ ~ ~ ~ ---- CERRETO ~, A ,, ~ ~ g ', - F a a o a ~ V O 8 O ~ ~ O ~ ni O ~ $ F z o ~ ~ i a ^ 1 11 ~ `~` ~ ~' O~V~ --__ II/ ,~E6 ..-_ __-_ Y' EX'B~N~ ~ / i ~~ ~ ~~g~~~ J z ~~ ~ ..~~ EXHIBIT B Revised Memorandum of Agreement for the Construction of Tnclusionary Units 2.~~~ ~~~ RECORDING REQUESTED BY: CITY OF DUBL>[N When Recorded Mail To: City Clerk City of Dublin 100 Civic Plaza Dublin, CA 94568 Fee Waived per GC 27383 Space above this line for Recorder's use MEMORANDUM OF AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND PAYMENT OF FEES IN LIEU OF CONSTRUCTING INCLUSIONARY HOUSING UNITS Dublin RE Investors, a California limited liability company. First Phase. (416 Residential Lots) of the Fallon Village Project This Memorandum of Affordable Housing Agreement for the Construction of Inclusionary Units and the Payment of Fees In-Lieu of Constructing Inclusionary Units (this "Memorandum") is entered into on this day of , 2009, by and between the City of Dublin, a municipal corporation (hereafter "City") and Dublin RE Investors, LLC, a California limited liability company, and Braddock & Logan Group II, L.P., a California limited partnership (collectively, "the Developer"). 1. Pursuant to the Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees In Lieu of Constructing Inclusionary Housing Units, dated as of June 5, 2007, and as amended on June 17, 2008, on November 4, 2008, on June 16, 2009, and on , 2009, by and between City and Developer (the "Agreement"), the Parties have set forth their respective obligations with respect to the provision of affordable units on lands presently owned by Developer, a portion of the 1043 residential parcel Positano Project (the "Project"), and more specifically described in Exhibit A (the "Property"). These obligations run with the land. 2.. The Agreement sets out the specific obligations for the construction of Inclusionary Units and payment of fees in lieu thereof in conjunction with the initia1416- residentialparcel phase of the development of the Project ("the Expanded First Phase"). It also obligates the Developer to make a Community Benefit Payment, as described in the Agreement, prior to issuance of building permits for each residential unit (excepting Second Units) within the Expanded First Phase. Development on, and the City's approval of subsequent final maps that include, any portion of the Property beyond the Expanded First Phase shall require either an amendment to this Agreement or a subsequent affordable housing agreement ("the Subsequent Agreement") setting forth the manner in which the Regulations will be complied with for the remainder of the Project. The Agreement also contains the Developer's covenant, on behalf of itself, and its successors and assigns, that it will not assert the provisions of Government Code section 66458 to require the City to approve additional phased final maps (beyond those for the creation of the 416 residential parcels in the Expanded First Phase) until such time as it has entered into the Subsequent Agreement. 3. Developer and City have executed and recorded this instrument to give notice of the Agreement, and the respective rights and obligations of Developer and City. The unrecorded Affordable Housing Agreement for the Construction of Inclusionary Units and Payment of Fees in Lieu of Constructing Inclusionary Housing Units is incorporated by reference in its entirety in this Memorandum. 4. This Memorandum shall bind and inure to the benefit of the parties and their respective heirs, successors and assigns, subject however to restrictions set forth in the Agreement regarding assignment. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date and year first above written. CITY OF DUBLIN By: Attest: Joni Pattillo, City Manager Caroline Soto, City Clerk Approved as to form John Bakker, City Attorney DUBLIN RE INVESTORS, LLC a California limited liability company By: Braddock and Logan Services, Inc. a California corporation Its Manager By: -' Name: ~"Fr' i.._~..I ~.-G~' ~~ BRADDOCK & LOGAN GROUP II, L.P. A California limited partnership By: Braddock and Logan Services, Inc. a California corporation Its General Partner y: Its: ~'~ Zoo ~ ~~ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Q,~I'~~~ ~~7{~ On ~ ~ ~ ~ before me, (~ ~ ~~ ~ • ~tn'13~.~~ ~f~(~-t~l ~~~Uc Date ~" Here Insert Name and Title o tF~- Officer ~ r' '-~ personally appeared who proved to me on the basis of satisfactory evidence to be the person( whose name(' subscribed to the within instrument and acknowledged to me that (~/stey executed the same i is brair authorized capacity(i~, and that by~r signaturej~ on the instrument the person(, or the entity upon behalf of which the person( acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. NANCY E. EMBREY Commission #r 1859710 = Notary Public -California Contra Costa County M Comm. Ez ires Au 1, 2013 Place Notary Seal Above WITNESS my hand and official seal. ' r ~. Signature a-i'~- ig ature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment onf this form to another doc~~um~ent. ~ Description of Attached Document~'~Y~D ~ l~ I'I'~' ~ n( cn `~`° `C•t'"Y~~ ~ `~ Title or Type of Document~,~ `~~` ~~``s'~L'~:1 ~-'`'~ ~~ ~ U~ i ~ e~ 1~••~ ~'' ^ ~r - ~ r~ c !-'~'~'R4=u i r ~ CTS ~ Tf~i1 ~ 1~~--ti Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): - ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing Top of thumb here Number of Pages: Signer's Name: ^ Individual ^ Corporate Officer -Title(s): _ ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Top of thumb here ®2007 National Notary Association • 9350 De Soto Ave., P.O. 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