HomeMy WebLinkAbout4.12 Moller Re Invest Affordable House Agmt M �z STAFF REPORT CITY CLERK
`� CITY COUNCIL File #600-N30
DATE: December 17, 2013
TO: Honorable Mayor and City Councilmembers
FROM: Joni Pattillo, City Manager(`"JJ &.;.- r O
SUBJECT: Affordable Housing Agreement with Moller RE Investors, LLC
Prepared by Amy Cunningham, Assistant to the City Manager
EXECUTIVE SUMMARY:
Moller RE Investors, LLC, a California limited liability company by Braddock & Logan, Inc., a
California corporation is seeking an Affordable Housing Agreement with the City of Dublin to
satisfy the affordable housing obligation for Moller Ranch Property. The developer has
proposed two alternative methods to the requirements described in the Inclusionary Zoning
Regulations to satisfy its 46-unit obligation for this project including: early payment of in-lieu fees
for all required units; or a combined payment of fees payable within 30 days of recordation of
the final map and construction of units.
FINANCIAL IMPACT:
CAny in-lieu payment made in accordance with this agreement will be deposited into the City's
Inclusionary Zoning In-Lieu Fee Fund and used for affordable housing programs. The costs to
administer the Affordable Housing Agreements, if the developer chooses to construct the units,
are included in the administration fees that are charged with the sale of each affordable unit and
the annual monitoring of rental projects.
RECOMMENDATION:
Staff recommends the City Council adopt the Resolution: approving an Affordable Housing
Agreement for the Construction of Inclusionary Units and the Payment of Fees In-Lieu of
Constructing Certain Affordable Ownership Units and Authorizing the City Manager to Execute
the Agreement, Amend the Agreement, and Take Other Necessary and Appropriate Actions and
authorizing the Community Development Director to Approve Developer's Chosen Method of
Compliance with its Inclusionary Housing Obligations.
Submitted By Reviewed By
Director of Community Development Assistant City Manager
Page 1 of 3 ITEM NO. 4.12
DESCRIPTION:
Moller Ranch Property is a residential development consisting of 371 single-family homes on a
216-acre project site. The project site is generally located to the east of Tassajara Road within
the Eastern Dublin Specific Plan area. The project is currently owned by Moller RE Investors,
LLC, a California limited liability company, by Braddock & Logan Inc., a California corporation
(Developer).
The Inclusionary Zoning Ordinance requires that residential projects with 20 or more for sale
units/lots contain at least 12.5% low-and moderate-income units/lots. The Ordinance further
requires that for-sale units be constructed as follows: 40% of the Inclusionary Unit obligation
may be satisfied through payment of a per unit in-lieu fee (currently $109,573 per unit); 60% of
the Inclusionary Unit obligation must be constructed. The Moller Ranch project requires that 46
of the 371 units be designated as Inclusionary Units.
Moller Ranch Property
Inclusionary Zoning Requirements
Total Inclusionary Inclusionary
Units Requirement Units
371 12.5% 46
The purpose of the Inclusionary Zoning Regulations are to enhance the public welfare and
assure that further housing development contributes to the attainment of the City’s housing
goals by increasing the production of residential units affordable by households of very-low, low,
and moderate-income and assure that the City’s planning area is utilized in a manner consistent
with the City’s housing policies and needs.
Section 8.68.040.E of the Ordinance provides that the City Council may, at its discretion, waive,
wholly or partially, the requirements of the Inclusionary Zoning Regulations and approve
alternate methods of compliance. To do so, the City Council must find that the alternate
methods meet the purposes on the Inclusionary Zoning Chapter.
The Developer requests that the City Council approve an alternate method to comply with the
requirement to construct the 46 required Inclusionary Units. Moller RE Investors, LLC is
proposing two alternate methods to satisfy its 46-affordable-unit obligation for the project as
follows:
1. Developer will pay fees in lieu of constructing the required 46 inclusionary units in the
amount of $85,000 per unit, for a total amount of $3,910,000 payable within 30 days of
recordation of the final map; or
2. Developer will pay fees in lieu of constructing a to-be-determined portion of
inclusionary units, payable within 30 days of recordation of the final map, and construct
437 sq. ft. moderate-income affordable units that include a living area, bedroom,
bathroom, and kitchen area to satisfy the remainder of its 46-unit obligation.
The Developer has agreed to notify the City as to which alternative it will pursue at least 30 days
prior to the planned recordation of the first final tract map.
In order to approve the proposed alternate methods, the City Council must find that the
Developer’s proposal “meets the purposes” of the Inclusionary Zoning Regulations (Section
Page 2 of 3
8.68.040.E of the Dublin Zoning Ordinance). Because of the specific aspects of this project and
the reasons listed below, Staff believes that the City Council can find that Moller RE Investors,
LLC’s proposed alternate method of complying with the Inclusionary Zoning Regulations “meets
the purposes” of the Regulations.
Staff suggests that it would be appropriate to find that the project as a whole will meet the
purposes of the Regulations as:
1. The location of the Project is not in close proximity to shopping, transportation, and
other amenities that are important factors for the residents of affordable units. Therefore,
the units that would be produced with the in-lieu fees are likely to be more suitable for
potential buyers than would be affordable units within the Project.
2. In addition, if units are constructed, the 437 sq. ft. secondary units, because of their
smaller size relative to other affordable units in the City, provide housing opportunities to
a specific, and often underserved portion of the community, including single adults and
elderly individuals.
3. Furthermore, low-income families would have difficulty qualifying for financing and
paying the high costs required to live in a single-family home of the size contemplated for
the Project (including homeowners’ association dues, geologic hazard abatement district
assessments, landscaping and lighting assessments, landscape maintenance on the
property, utilities, and long term maintenance). Developer’s proposal to provide smaller
secondary units would alleviate some of this difficulty.
The proposed Resolution (Attachment 1) approving the agreement includes the required
findings.
If the City Council approves the agreement (Exhibit A to Attachment 1), other amendments to
the Project Approvals may be required to maintain consistency between the Planned
Development Zoning, Site Development Review and the Agreement. The Dublin Zoning
Ordinance allows the Community Development Director to modify these approvals by
administrative action if the changes are consistent with the City’s Ordinances and the intent of
the approved Planning Development Zoning and Site Development Review. If any proposed
changes are minor and consistent with the intent of the approved Planned Development Zoning
and Site Development Review; an Administrative Amendment to the Planned Development
Zoning and a Site Development Review Waiver would be subsequently approved by the
Community Development Director.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
The request for an Affordable Housing Agreement is not subject to a public hearing therefore a
public hearing notice is not required. A copy of this Staff Report has been provided to the
Developer and posted on the City’s website.
ATTACHMENTS:
1. Resolution Approving Affordable Housing Agreement
2. Exhibit A - Affordable Housing Agreement
Page 3 of 3
RESOLUTION NO. XX - 13
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * * * * * * * * * *
APPROVING AN AFFORDABLE HOUSING AGREEMENT FOR THE CONSTRUCTION OF
INCLUSIONARY UNITS AND THE PAYMENT OF FEES IN-LIEU OF CONSTRUCTING
CERTAIN AFFORDABLE OWNERSHIP UNITS AND AUTHORIZING
THE CITY MANAGER TO EXECUTE THE AGREEMENT, AMEND THE AGREEMENT, AND
TAKE OTHER NECESSARY AND APPROPRIATE ACTIONS AND AUTHORIZING THE
COMMUNITY DEVELOPMENT DIRECTOR TO APPROVE DEVELOPER’S CHOSEN
METHOD OF COMPLIANCE WITH ITS INCLUSIONARY HOUSING OBLIGATIONS
WHEREAS,
pursuant to the requirements of the Inclusionary Zoning Regulations of the
City of Dublin Zoning Ordinance (the "Ordinance" or “Regulations”), the City of Dublin (the
"City") and Moller RE Investors, LLC, a California limited liability company by Braddock & Logan
Inc., a California corporation, (“Developer"), wish to enter into an Affordable Housing Agreement
for the Construction of Inclusionary Units and the Payment of Fees In Lieu of Constructing
Certain Inclusionary Units (the "Agreement") for the Moller Ranch Project (“Project”); and
WHEREAS,
Developer has determined that it is infeasible to construct forty-six (46)
affordable units, and it has, following discussions with City staff, proposed the following alternate
methods to satisfy its 46-unit obligation for the Project:
1. Developer will pay fees in lieu of constructing 46 inclusionary units in the amount of
$85,000 per unit, for a total of $3,910,000, payable within 30 days of recordation of the
final map; or
2. Developer will pay fees in lieu of constructing a to-be-determined portion of inclusionary
units, payable within 30 days of recordation of the final map, and construct 437 sq. ft.
moderate-income affordable units that include a living area, bedroom, bathroom, and
kitchen area to satisfy the remainder of its 46-unit obligation.
WHEREAS,
Developer has agreed to notify the City as to which alternative it will pursue,
at least 30 days prior to the planned recordation of the first final tract map; and
WHEREAS,
Section 8.68.040.E of the Dublin Zoning Ordinance allows the City Council,
at its discretion, to waive, wholly or partially, the requirements of the Inclusionary Zoning
Regulations and approve an alternate method of compliance if the applicant demonstrates, and
the City Council finds, that such alternate methods meet the purposes of the Inclusionary Zoning
Chapter; and
WHEREAS,
the purpose of the Inclusionary Zoning Regulations are to enhance the
public welfare and assure that further housing development contributes to the attainment of the
City’s housing goals by increasing the production of residential units affordable by households of
very-low, low and moderate-income and assure that the limited remaining developable land in
the City’s planning area is utilized in a manner consistent with the City’s housing policies and
needs; and
1
WHEREAS,
a Staff Report setting forth in further detail the background and terms of the
Agreement has been submitted to the City Council for consideration of this request.
NOW, THEREFORE, BE IT RESOLVED
the City Council hereby finds that the proposal
by Developer to either pay fees in-lieu of constructing forty-six (46) Inclusionary Units or a
portion of said units and construct 437 sq. ft. moderate-income secondary affordable units, as
an alternate method of complying with the Inclusionary Zoning Regulations is consistent with the
purposes of the Inclusionary Zoning Regulations for the reasons that follow:
1. The location of the Project is not in close proximity to shopping, transportation, and
other amenities that are important factors for the residents of affordable units.
Therefore, the units that would be produced with the in-lieu fees are likely to be
more suitable for potential buyers than would be affordable units within the Project.
2. In addition, if units are constructed, the 437 sq. ft secondary units, because of their
smaller size relative to other affordable units in the City, provide housing
opportunities to a specific, and often underserved portion of the community,
including single adults and elderly individuals.
3. Furthermore, low-income families would have difficulty qualifying for financing and
paying the high costs required to live in a single-family home of the size
contemplated for the Project (including homeowners’ association dues, geologic
hazard abatement district assessments, landscaping and lighting assessments,
landscape maintenance on the property, utilities, and long term maintenance.)
Developer’s proposal to provide smaller secondary units would alleviate some of
this difficulty.
BE IT FURTHER RESOLVED
that theCity agrees waive Section 8.68.040.A of the
Regulations stating that a developer can pay fees in lieu of constructing a maximum of 40% of
its inclusionary-unit obligation, and
BE IT FURTHER RESOLVED
that the City agrees to waive the requirement forth in
Resolution 56-02 effective May 7, 2002, establishing the annual methodology for the fee in lieu
of constructing an inclusionary unit ($109,573 effective July 1, 2013), and agrees, given
Developer’s agreement to make the payment earlier than otherwise required, to accept payment
of $85,000 per Inclusionary Unit required but not constructed, and
BE IT FURTHER RESOLVED
that the City agrees to waive that portion of Section
8.68.040.E of the Regulations, stating that all affordable units shall reflect the range of numbers
of bedrooms provided in the project as a whole. In doing so, the City and Developer agree that
all Inclusionary Units will be 437 sq. ft., and include a living area, bedroom, bathroom, and
kitchen area, and
BE IT FURTHER RESOLVED
that the City Council of the City of Dublin does hereby
approve Affordable Housing Agreement for the Construction of Inclusionary Units and the
Payment of Fees In-Lieu of Constructing Certain Inclusionary Units Between the City of Dublin
and Developer, as described in Exhibit A. (“Agreement”), and
BE IT FURTHER RESOLVED
that the City Manager is authorized and directed to
execute the Agreement and such other documents, and to take such other and further action, as
necessary and appropriate to carry out the intent of this Resolution, and
2
BE IT FURTHER RESOLVED
that the Community Development Director or his or her
designee, as specified in the Agreement, is authorized to approve the Developer’s chosen
method of compliance with its inclusionary housing obligations.
PASSED, APPROVED AND ADOPTED
this 17th day of December 2013, by the
following vote:
AYES
:
NOES
:
ABSENT
:
ABSTAIN
:
______________________________
Mayor
ATTEST
:
_________________________________
City Clerk
2123810.1
3
RECORDING REQUESTED BY:
City of Dublin
When Recorded Mail To:
City Clerk
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Fee Waiver per G.C. 27383
Space above this line for Recorder’s Use
AFFORDABLE HOUSING AGREEMENT
FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND THE PAYMENT OF
FEES IN-LIEU OF CONSTRUCTING CERTAIN INCLUSIONARY UNITS
Moller RE Investors, LLC, a California limited liability company
by Braddock & Logan Services, Inc., a California corporation
Moller Ranch Property
Affordable Housing Agreement
Moller Ranch Property
12/10/2013
AFFORDABLE HOUSING AGREEMENT
FOR THE CONSTRUCTION OF INCLUSIONARY UNITS AND THE PAYMENT OF
FEES IN-LIEU OF CONSTRUCTING CERTAIN INCLUSIONARY UNITS
Moller RE Investors, LLC, a California limited liability company
By Braddock & Logan Services, Inc., a California corporation
Moller Ranch Property
THIS AGREEMENT is hereby entered into this __ day of ______, 2013 by and between the
City of Dublin (the “City”) and Moller RE Investors, LLC, a California limited liability company, by
Braddock & Logan Services, Inc. a California corporation, (the “Developer”).
Recitals
A. Chapter 8.68 of the Dublin Municipal Code contains Inclusionary 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 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 are 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 for sale
units/lots contain at least 12.5% low- and moderate-income units/lots. The Regulations require that
the for-sale units be constructed in the following proportions: 40% low-income, and 60% moderate
income. In lieu of constructing 40% of the Inclusionary Units that the Regulations would otherwise
require, the Regulations authorize developers to pay a fee of $109,573 for each affordable unit that is
required but not built. If developers opt to pay the maximum allowable fees in lieu of construction,
they are still required to construct 60% of the obligation.
D. Developer is the owner of 216 acres of real property in the City of Dublin generally
located to the east of Tassajara Road within the Eastern Dublin Specific Plan area and more
specifically described in Exhibit 1 (the “Property”). The development project is a residential project
consisting of 371 single-family residential units (the “Project”). The Planning Commission, on
November 27, 2012 approved Site Development Review (PC Reso. No. 12-45) for the project.
E. Developer has determined that it is infeasible to construct forty-six (46) affordable
units, and it has, following discussions with City staff, proposed two alternate methods to satisfy its
46-affordable-unit obligation for the project. Developer’s two proposed alternatives are as follows:
Affordable Housing Agreement
Moller Ranch Property
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1.Developer will pay fees in lieu of constructing 46 inclusionary units in the
amount of $85,000 per unit, for a total amount of $3,910,000, payable within
30 days of recordation of the final map, or;
2.Developer will pay fees in lieu of constructing a portion of the 46 inclusionary
units at the rate of $85,000 per unit and construct the remaining units as
attached secondary Inclusionary Units.
Developer has agreed to notify the City as to which alternative it will pursue, at least 30 days
prior to the planned recordation of the first final tract map.
F. Section 8.68.040.E of the Dublin Zoning Ordinance allows the City Council, at its
discretion, to waive, wholly or partially, the requirements of the Regulations and approve an
alternative method of compliance if the applicant demonstrates, and the City Council finds, that
such alternate method meets the purposes of the Regulations; and
G. In the resolution approving this agreement, the City Council found that the
Developer’s alternate methods of complying with the Regulations for the Project, as set forth
herein, meet the purposes of the Regulations; and
H. The purpose of this Agreement is to set forth the manner by which Developer satisfies
any and all inclusionary housing obligations applicable to the Project under the Regulations.
NOW, THEREFORE, in satisfaction of the requirements of Chapter 8.68 of the Dublin
Municipal Code, condition 23 of PC Resolution No. 12-45, 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 Affordable Housing Obligations.
a.Developer will satisfy its 46-unit inclusionary zoning obligation for the
Project by, at Developer’s election, either (a) paying fees in lieu of construction at a rate of
$85,000 per unit or (b) constructing up to 46 moderate income, 437 square-foot secondary units
that include a living area, bedroom, bathroom, and kitchen area (“the Inclusionary Units”) and
paying in lieu fees at a rate of $85,000 per unit on the difference between 46 and the number of
units to be constructed. Developer shall identify its election at least 30 days prior to the
proposed date for the City’s approval of the final map for the project.
b.If Developer elects to construct the Inclusionary Units, it shall identify in a
diagram for the Community Development Director’s approval the number and location of the
Inclusionary Units by income level. In approving the diagram, the Community Development
Director shall find (a) that the diagram depicts the number of units specified by the Developer;
(b) that the identified units are “reasonably dispersed” throughout the Project, as required by
Section 8.68.030.E of the Regulations; and (c) that the income levels of the Inclusionary Units
are consistent with Section 8.68.030.B of the Regulations. Once approved, the diagram shall be
Affordable Housing Agreement
Moller Ranch Property
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incorporated into this agreement as an exhibit as though fully set forth herein. Developer hereby
agrees that it will not assert the provisions of Government Code section 66458 to require the City
to approve final maps until such time as it has satisfied the requirements of this Subsection.
c.Section 8.68.030 of the Regulations requires that all Inclusionary Units in
a project be constructed concurrently with a project or phase of a project. If the City Building
Official or City Community Development Director determines that the Inclusionary Units have
not been or are not being constructed concurrently with the market-rate units in the Project as
required by this Section 2, the Building Official shall withhold further issuance of building
permits in the Project until construction of the Inclusionary Units has been completed to the
satisfaction of the Community Development Director.
3.In-Lieu Fees. If Developer, when it makes its election, elects to pays fees in lieu
of constructing any portion of the Inclusionary Units, Developer will pay a sum of $85,000 per
inclusionary unit for which it elects to pay fees. Thus, if it elects to pay fees for the entire 46-
unit obligation, Developer would pay $3,910,000. The entirety of the fees be paid within 30 days
of the recordation of the first final map for the project. If the payment is not made when due, the
City may withhold any further city approvals for the project, such as occupancy authorizations or
building permits.
4.Inclusionary Unit Design, Location, and Size.
a.Exterior Materials and Exterior Architectural Design. Section 8.68.030.E
of the Regulations provides that Inclusionary Units shall not be distinguished by exterior design,
construction, or materials. Although the proposed Inclusionary Units are smaller than the units
in the project as a whole, the City Council in approving this agreement found that, due to the
architectural treatment and configuration of the Inclusionary Units, the Inclusionary Units are not
distinguished by exterior design, construction, or materials. The exterior materials and exterior
architectural design of the Inclusionary Units shall be consistent with the market-rate units
within the Project as reviewed and approved through the Site Development Review by 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.
b.Unit Location. Section 8.68.030 of the Regulations requires that
Inclusionary Units be dispersed throughout the individual phase in which they are constructed.
If Developer elects to construct Inclusionary Units, the Community Development Director will
be required to approve a diagram that shows the location of the Inclusionary Units as proposed
by the Developer and find that the units as shown are reasonably dispersed throughout as
required by Section 8.68.030.E of the Regulations. Developer shall construct the units in the
locations identified in the diagram, which will ensure compliance with Section 8.68.030 of the
Regulations. After the diagram has been approved, the Community Development Director may
administratively approve changes in the location of the Inclusionary Units provided that he or
she finds that the units are reasonably dispersed as required by Section 8.68.030.E. In so doing,
the Community Development Director shall in writing approve a revised diagram, and upon such
approval it shall be deemed to replace the existing diagram.
Affordable Housing Agreement
Moller Ranch Property
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c.Unit Bedrooms and Size. Section 8.68.030.E requires that the
Inclusionary Units reflect the range of numbers of bedrooms provided in the project as a whole.
The Developer proposes to provide up to 46 moderate-income Inclusionary Units that include a
living area, a bedroom, a bathroom, and a kitchen area. The City Council in approving this
agreement found that, while this breakdown does not reflect the range of numbers of bedrooms
provided by the units 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.
5.Ensuring Affordability.
a.Regulatory Agreements. Developer shall, if it elects to construct
Inclusionary Units, require the initial buyer of each parcel on which one of the Inclusionary
Units is located to execute, and record against the parcel, a Secondary Unit Regulatory
Agreement in substantially the form attached hereto as Exhibit 3. Developer shall ensure that the
initial buyer attends an orientation session, provided by the City, or City approved third party,
that describes the requirements of the Secondary Unit Regulatory Agreement.
b.City Administrative Fee. Prior to the City’s execution of each Secondary
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.
c.Term. This Agreement shall be effective until all in-lieu fees have been
paid, and all Inclusionary Units are constructed, sold, and a Secondary Unit Regulatory
Agreement has been recorded against each property on which a Secondary Unit is located.
Developer shall have no further obligations under this Agreement. Notwithstanding any
provisions of this Agreement to the contrary, the burdens of this Agreement shall terminate as to
any parcel that is 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
parcel shall be released from and no longer be subject to or burdened by the provisions of this
Agreement.
6.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 4, and City shall cause the Memorandum to be recorded in the Official
Records of Alameda County upon its execution.
7.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
Affordable Housing Agreement
Moller Ranch Property
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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.
8.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.
b.Approval and Notice of Sale, Transfer or Assignment. The City Manager
shall consider and decide on any transfer, sale or assignment within thirty (30) days after
Developer’s notice thereof, provided all necessary documents, certifications and other
information are provided to the City Manager to enable the City Manager to determine whether
the proposed Transferee can perform the Developer’s obligations hereunder. Nothing herein shall
be deemed to limit the right of Developer to freely alienate or transfer all or any portion of the
Property, provided however, Developer shall not be released from liability under this Agreement
unless and until the proposed Transferee shall have agreed in writing to be bound by and to
comply with the requirements of this Agreement and any recorded Second Unit Regulatory
Agreement and the City Manager has approved of such Transferee in accordance with this
Section 9(b). Notice of any such approved sale, transfer or assignment (which includes a
description of all rights, interests and obligations that have been transferred and those which
have been retained by Developer) shall be recorded in the official records of Alameda County, in
a form acceptable to the City Manager, concurrently with such sale, transfer or assignment. In
the event the City Manager fails to make such determination within such thirty (30) day period,
City shall be deemed to have approved the assignment and assumption of this Agreement by the
proposed Transferee and Developer shall be released pursuant to Section 9(c) below.
c.Effect of Sale, Transfer or Assignment. Developer shall be released from
any obligations and liability hereunder sold, transferred or assigned to a Transferee pursuant to
Section 9.a of this Agreement, provided that: a) such sale, transfer or assignment has been
approved by the City Manager pursuant to Sections 9.a and 9.b; and b) such obligations are
expressly assumed by Transferee and provided that such Transferee shall be subject to all the
provisions hereof.
9.Successors. Except as specifically provided in this Agreement, this Agreement
shall bind and inure to the benefit of all successors and assigns of the parties and any associates
in interest, and their respective directors, officers, agents, servants, and employees, and the
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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.
10.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
provided however, that the foregoing indemnity shall not be construed to apply to any liability or
claims related to administering any provisions of the Secondary Unit Regulatory Agreement for
any Inclusionary Unit following the sale of such Inclusionary Unit to an initial Qualified
Purchaser.
11.Enforcement. If the Developer defaults in the performance or observance of any
covenant, condition, restriction or obligation of the Developer as set forth in this Agreement, and
such default remains uncured for a period of thirty (30) days after notice thereof is given by the
City (or such longer period as may be necessary to cure the default, provided that Developer
commence the cure within the thirty (30) day period and diligently prosecutes the cure to
completion), the City may take any one or more of the following steps:
a.By specific performance or other action or proceeding at law or in equity,
require the Developer to perform its obligations under this Agreement or enjoin any acts or
things which may be unlawful or in violation of the rights of the City hereunder.
b.Take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations, covenants, conditions and restrictions of the Developer
under this Agreement.
If Developer transfers any portion of the project in bulk and a Transferee defaults under this
Agreement, the City shall exercise the foregoing remedies only with respect to the defaulting
Transferee and its portion of the project; and so long as Developer has not otherwise defaulted
hereunder, the City shall not seek to exercise any rights and remedies against Developer.
12.Amendments.
a.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.
b.In the event that Developer is unable to perform its obligations under
Section 2 of this Agreement due to significant changes in circumstances, such as unanticipated
delays in construction within the Project, the City shall confer with Developer in an effort to
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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.
13.Corporate Authority. 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.
14.Attorneys’ Fees. If legal action is necessary to enforce any provisions of this
Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and legal costs.
15.Notices, Demands and Communications Between the Parties. Any and all notices,
demands or communications submitted by any Party to another Party pursuant to or as required
by this Agreement shall be proper if in writing and dispatched by messenger for immediate
personal delivery, or by registered or certified United States mail, postage prepaid, return receipt
requested, to the address of City and Developer, as applicable, as set forth below. Such written
notices, demands and communications may be sent in the same manner to such other addresses
as either Party may from time to time designate as provided in this Section. Any such notice,
demand or communication shall be deemed to be received by the addressee, regardless of
whether or when any return receipt is received by the sender or the date set forth on such return
receipt, on the day that it is dispatched by messenger for immediate personal delivery, or two (2)
calendar days after it is placed in the United States mail as heretofore provided.
If to Developer: Jeff Lawrence
Moller RE Investors, LLC
by Braddock & Logan Services, Inc.
4155 Blackhawk Plaza Circle, Suite 201
Danville, CA 94506
FAX No. (925) 648–5700
If to City: City Manager
City of Dublin
100 Civic Plaza
Dublin, CA 94568
16.Entire Agreement. This Agreement contains the entire understanding between the
parties relating to the transaction contemplated hereby, and all prior or contemporaneous
agreements, understandings, representations and statements, oral or written, are merged herein
and shall be of no further force or effect. No provision of this Agreement may be amended,
waived, or added except by an instrument in writing signed by the Parties hereto.
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17.Incorporation of Exhibits. All exhibits referred in this Agreement are incorporated
herein by reference.
18.Counterparts. This Agreement may be executed in counterparts, which when
taken together shall constitute a single signed original as though all parties had executed the
same page.
[signatures page follows immediately]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date and year first above written.
Dated: CITY OF DUBLIN
By:
City Manager
Attest
City Clerk
Moller RE Investors, LLC, A California limited
Dated:
liability company
By: Braddock & Logan Services, Inc.
a California corporation
Its: Manager
By: _________________________
Name:
Its:
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EXHIBIT 1
Property Description
(Attach legal description.)
EXHIBIT 2
Guideline to the Inclusionary Zoning Ordinance Regulations
(Attach document.)
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EXHIBIT 3
Secondary Unit Regulatory Agreement
(Attach agreement.)
-3-
EXHIBIT 4
Memorandum of Agreement
(Attach agreement.)
2207794.1
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