HomeMy WebLinkAboutStaff Report 254-06City of Palo Alto
City Manager’s Report
TO:HONORABLE CITY COUNCIL
FROM:CITY MANAGER DEPARTMENT: PLANNING AND
COMMUNITY ENVIRONMENT
DATE:AUGUST 7, 2006 CMR:254:06
SUBJECT:4219 EL CAMINO REAL [05PLN-00235]: CONSIDERATION OF A
REQUEST BY DR HORTON HOMEBUILDERS FOR A FINAL MAP TO
MERGE TWO EXISTING PARCELS AND SUBDIVIDE THE
RESULTING 15.84 ACRE SITE INTO ELEVEN SINGLE-FAMILY LOTS
AND ONE MULTIPLE-FAMILY LOT FOR THE DEVELOPMENT OF A
PREVIOUSLY APPROVED SINGLE-FAMILY AND MULTIPLE-
FAMILY CONDOMINIUM PROJECT LOCATED AT 4219 EL CAMINO
REAL. THE FINAL MAP ALSO INCLUDES THE CREATION OF A
NEW PUBLIC STREET BETWEEN 4219 AND 4249 EL CAMINO REAL
AND A STREET NAME 5~kP FOR THE NEW PUBLIC AND PRIVATE
STREETS.AN ENVIRONMENTAL IMPACT REPORT WAS
CERTIFIED BY THE CITY COUNCIL IN JUNE 2004. ZONE DISTRICT:
cs(n), CS(L).
RECOMMENDATION
Staff recommends that the City Council approve the proposed Final Map for 4219 E1 Camino
Real to merge two parcels (approximately 15.84 acres) and create one multiple family lot
containing 170 condominium units and 11 single-family lots and approve the street name map
for the new public and private streets.
DISCUSSION
The Final Map, the Subdivision Agreement, the Tentative Map Record of Land Use Action, and
Below Market Rate Agreement have been provided for the Council’s review. The Planning
Division, the Public Works Department and the City Attorney have reviewed the Final Map,
Subdivision Agreement, Below Market Rate Agreement and the Covenants, Conditions, and
Restrictions (CCRs) and have determined that they are consistent with the Tentative Map and
Record of Land Use Action. According to the State Subdivision Map Act, the City Council must
therefore approve the Final Map.
The map satisfies all approval conditions for the Tentative Map, including the preparation of a
Subdivision Improvement Agreement (Attachment C) and BMR Agreement (Attachment D).
CMR:254:06 Page 1 of 2
The project includes one new public street between the project site and the adjacent Elk’s Lodge
at 4249 E1 Camino Real. Half of the new public street is located on the project site. The other
half of the street would be located on the Elk’s Lodge site. The Elk’s Lodge portion of the street
is not shown on the Final Map. The Elk’s Lodge portion of the street would be dedicated to the
City as an easement at the time that the Elk’s Lodge site is redeveloped.
A street name map has been incorporated into the Final Map. Street names are not required for
approval of the Final Map. However, the applicant will comply with the City of Palo Alto’s
policies and procedures and request that the Palo Alto Historical Association (PAHA)
recommend approval of street names within the development. If alternative street names are
recommended by PAHA, the street name map would return to the Council for review and
approval as a certificate of correction to the Final Map.
PREPARED BY:
DEPARTMENT HEAD:
CITY MANAGER APPROVAL:
STEVEN TURNER
Senior Planner
STEVE EMSLIE
Director of Planning and Comanunity Environment
EMII~.Y HARRISON
Assistant City Manager
ATTACHMENTS
B.
C.
D.
E.
Record of Land Use Action of Tentative Map Approval
City Council Meeting Minutes from December 5, 2005
Subdivision Ageement
BMR A~eement
Final Map (Comacil Members Only)
COURTESY COPIES:
Bridget Koller, DR Horton Homebuilders, Project Applicant
CM_R:254:06 Page 2 of 2
APPROVAL NO. 2005-13
RECORD OF THE COUNCIL OF THE CITY OF PALO ALTO
LAND USE ACTION FOR 4219 EL CAMINO REAL
TENTATIVE MAP 05PLN-00235
(DR HORTON, APPLICANT)
At its meeting on December 5, 2005, the City Council of the
City of Palo Alto approved the Tentative Map to merge two parcels
(approx. 15.8 acres) and create one multiple-family lot containing
170 multiple-family units and Ii single-family lots, making the
following findings, determination and declarations:
SECTION I. Background. The City Council of the City of
Palo Alto ("City Counci!") finds, determines, and declares as
follows:
A. Proposed by DR Horton Homebuilders, this project
involves merging the two existing parcels into one multiple-family
lot and i! single-family lots, the demolition of the existing
buildings, and the construction of 170 multiple-family units and ii
single-family units. The density of the multiple-family lot would
be 12.4 dwe!ling units per acre, under the maximum limitation set
by the zone district (per Palo Alto Municipa! Code (PAMC) Chapter
18.24, RM-30 regulations) of 30 dwelling units per acre. Each of
the single-family lots would contain one dwelling unit under the
maximum limitation set by the zone district (per Pa!o Alto
Municipal Code (PAMC) Chapter 18.12, R-I regulations) of one (!)
dwelling unit per lot. Of the total units proposed, thirty-four
(34) shall be dedicated as Below Market Rate (BMR) units. Thirty-
one (31) separate floor plans are .proposed within four (4) types of
residential buiidings. Per each multi-family unit, the buildings
house two floors constructed above the garage. For each single-
family unit, there would be two hab±table floors, some with
attached garages and some with detached garages. The applicant has
requested design Enhancement Exceptions for height, setbacks,
daylight plane, and tandem parking. These exceptions would allow
the project to be in better conformance with the E1 Camino Design
Guidelines and the Architectural Review Board’s Standards of
Review, as described in PAMC 18.76.020(d). The unit sizes, proposed
from two to three bedrooms, range from the smallest at 1,424 s.f.
to the largest at 2,736 s.f., not including garage space.
B. The Tentative Map plan set includes information on
the existing parcels and onsite conditions (Sheet 4,5,6,7); the
layout of new private streets and walkways, including the various
buildings with individual units, and guest parking spaces (Sheets
8,9,10,ii) ; grading plan (Sheet 12,13,14,15); utility plan (Sheet
16,17,18,19) and cross-sections of new streets and walkways (Sheets
20,21,22). These drawings are in compliance with the applicable
provisions of the City’s Subdivision Ordinance. These plans
contain al! information and notations required to be shown on a
Tentative Map (per PAMC Sections 21.12), as wel! as conform to the
design requirements concerning the creation-of lots, streets,
walkways, and similar features (P~MC 21.20). The plan set also
conforms to the approved ARB site plan. Because the request is to
create more than four condominium units, this request carrot be
processed administratively through the Director and requires review
by the Commission and City Council approval (PAMC 21.08.010).
C. The Tentative map indicates the location and extent
of proposed dedications associated with the development of the
project. Redevelopment of the site would include the construction
of a new public road along the interior side property line shared
with 4249 E1 Camino Real (Elks Lodge). The road includes a new
vehicular and pedestrian intersection at E1 Camino Real. This
intersection would not be a signalized intersection and would allow
left and right turns from the development to the state highway.
This road would serve as the primary vehicular entry and exit from
the redeveioped Hyatt property and the redeveloped Elk’s Lodge
property. The public portion of the road would terminate 720 feet
from E1 Camino Rea!, where it turns to the northwest to become the
private loop through the Project. Each east/west travel lane is
approximately 12-feet wide with large landscaped islands to
accommodate the existing mature trees along the proper~y line.
Vertica! curbs, planter strips and sidewalks line the entire length
of the road. The DR Horton and Elk’s Lodge property owners will
dedicate the road to the City.
D. These dedications would be reviewed and recorded
during the Final map process. The Final map would describe the
terms and conditions of the dedications, including how the
dedications may be used and maintained and the identification of
the parties responsible for payment of costs, fees and maintenance
issues.
E. ARB approval, granted by the Director on August 30,
2005, addressed the project’s compliance with zoning and
architectural regulations. The Tentative Map application has been
reviewed by staff and City departments for compliance with zoning,
subdivision, and other codes and ordinances and received Planning
and Transportation Commission (Commission) review on September 28,
2005. The Commission recommended approva! on a 6-0-0-1 vote
(Commissioner Bia!son absent).
SECTION 2. Environmental Review. A Final Environmental
Impact Report (FEIR) and Mitigation Monitoring and Reporting
Program (MMRP) was prepared for a revised redevelopment project,
including a 100% multi-family residential use of i85 units and
approximately 400,000 square feet of floor area. This revised
project was certified by the City Council in June 2004. The City
Council found that the FEIR adequately assessed the environmental
impacts of the revised project, in that the multi-family project
was essentially a smaller hybrid of the initially proposed project
and four of the alternatives described and assessed in the project
FEIR. Any use on the site other than the residentia! use would be
allowed only after considering the CEQA environmenta! affects of
the use though a supplemental EIR. The proposed residential
project, as conditioned, is consistent with the certified EIR.
SECTION 3.Tentative Map Findings.
A legislative body of a city shall deny approval of a Tentative
Map, if it makes any of the following findings (California
Government Code Section 66474):
!. That the proposed map is not consistent with applicable
general and specific plans as specified in Section 65451:
The site does not lie within a specific plan area and
is consistent with the Comprehensive Plan.
2. That the design or improvement of the proposed
subdivision is not consistent with applicable general and specific
plans :
The map is consistent with major Comprehensive Plan
policies related to the change in land use, Policy L-I: Continue
current City policy limiting future urban development to currently
developed lands within the urban service area. The existing
parcels are located within the urban growth boundary and the lot
merger is consistent with this policy by continuing the reuse of
land within this area and Policy L-7: Evaluate changes in land use
in the context of regiona! needs, overall city welfare and
objectives, as well as the desired of the surrounding
neighborhoods. The map is consistent with the Housing Element
policies (Goal H-I, Policies H-2 and H-4, Goal H-2, Policy H-9, and
Goal H-3, below market rate units.
3. That the site is not physically suitable for the type
of development :
The merger of the parcels does not affect site density,
and the Tentative Map, as conditioned, is suitable for the
previously approved development of the Project.
4. That the site is not physically suitable for the
proposed density of development:
The purpose for the Tentative Map is to merge the two
existing parcels and creation one multiple-family !or containing
170 multiple-family units and II single-family lots. In doing so,
the site would remain within the permissible density allowed by the
current CS zone district, which dictates compliance with RM-30 site
development regulations: A maximum site density of 4?4 total units
or 30 dwelling units per acre. As proposed, this map would enact
181 dwelling units, an amount under the maximum permissible.
5. That the design of the subdivision or the proposed
improvements are likely to cause substantial environmental damage
or substantially and avoidably injure fish or wildlife or their
habi tat :
The merger of parcels and creation of condominium units
will not cause environmental damage or injure fish, wildlife, or
their habitat, as no habitat for endangered, rare, threatened, or
other sensitive species is present on site.
6. That the design of the subdi vi si on or type of
improvements is likely to cause serious public health problems:
The Tentative Map will not cause serious public health
problems, as the environmental concerns have been reviewed in the
Environmental Impact Report that was certified for the project, and
mitigation measures and conditions of approval have been approved
to reduce impacts to a less than significant level.
7. That the design of the subdivision or the type of
improvements will conflict with easements, acquired by the public
at large, for access through or use of, property within the
proposed subdivision. In this connection, the governing~body may
approve a map if it finds that alternate easements, for access or
for use, will be provided, and that these will be substantially
equivalent to ones previously acquired by the public. This
subsection shall apply only to easements of record or to easements
established by judgment of a court of competent jurisdiction and no
authority is hereby granted to a legislative body to determine that
the public at large has acquired easements for access through or
use of property within the proposed subdivision.
The design the parcel merger will not conflict with
easements on or off the site, as all easements will be maintained
and any adjustments or .new easements shall only be allowed or
established by the conditions of approval.
SECTION 4.Tentative Map Approval Granted. Tentative
Map approval is granted by the City Council under Palo Alto
Municipal Code ("PAMC") Sections 21.13 and 21.20 and the California
Government Code Section 66474, subject to the conditions of
approval in Section 6 of this Record.
SECTION 5.Final Map Approval.
The Final Map submitted for review and approval by the City
Counci! of the City of Palo Alto shall be in substantia!
conformance with the Tentative Map prepared by BKF Engineers,
Surveyors, and Planners titled "Tentative Map: Hyatt Rickey’s
Redevelopment", consisting of twenty-two~ (22) pages, dated
September 22, 2005, except as modified to incorporate the
conditions of approval in Section 6.
A copy of this Tentative Map is on file in the. Department
of Planning and Community Environment, Current Planning Division.
Within two years of the approval date of the Tentative Map,
the subdivider shall cause the subdivision or any part thereof to
be surveyed, and a Final Map, as specified in Chapter 21.08, to be
prepared in conformance with the Tentative Map as conditiona!ly
approved, and in compliance with the provisions of the Subdivision
Map Act and PAMC Section 21.16 and submitted to the City Engineer
(PAMC Section 21.16.0!0[a]).
SECTION 6.Conditions of Approval.
Department of Planning and Community Environment
Planning Division
I. A Final Map, in conformance with the approved Tentative
Map, all requirements of the Subdivision Ordinance (PAMC Section
21.16), and to the satisfaction of the City Engineer, shall be
filed with the Planning Division and the Public Works Engineering
Division within two years of the Tentative Map approva! date (PAMC .
21.13. 020 [c]) .
2. A preliminary copy of restrictive covenants (CC&Rs)
shall be submitted for review at the time of Final Map submittal.
3. The applicant shall adhere to the requirements of ~the
Below Market Rate (BMR) Letter Agreement, dated November 29, 2005.
In addition, a formal BMR Agreement, including the identification
of the locations of the BMR units and provisions for their sale,
shall be prepared in a form satisfactory to the City Attorney,
executed by DR Horton Homebuilders and the City, and recorded
against the property prior to or concurrent with the recording of
the Subdivision Improvement Agreement.
4. The applicant shal! enter into an offsite improvement
agreement with the City regarding construction of certain
improvements in the E1 Camino Rea! public right-of-way that the
City reasonably determines are necessary to mitigate future traffic
impacts as described in the traffic report dated September 29,
2005, prepared by Dalene J. Whit!ock, P.E. Such off site
improvements comprise (!) the construction of a new full-access
median where the applicant’s property intersects with the Elk’s
Lodge property (i.e., the future location of the "Public Roadway"
serving both properties) and (2) modification of the existing
median at the northerly access point so as to limit vehicular left
turns in to and out of the project site. Such off-site
improvements do not include any frontage improvements on E1 Camino
Real or otherwise. The agreement would include a cost sharing
formula between the applicant and the owner of the Elk’s Lodge
property to cover the combined cost of both the off site
improvements set forth above and the cost of grading, constructing
and otherwise improving the Public Roadway. The formula would be
calculated on a fair share basis, based on the number of trips
generated by the Project and the number of trips expected to be
generated by redevelopment of the entirety of the Elk’s Lodge site.
Prior to Submittal of Final Map
Planning Division
5. The Final Map shall be crosschecked for compliance
with the ARB and the Tentative Map approved plans and conditions.
Department of Utilities
6. In consultation with the Departments of Utilities and
Planning and Community Environment, Public Utility Easements for
installation and maintenance of water meters, gas lines, gas
meters, and pad-mounted transformers with associated substructures
sha!l be designated on the Fina! Map.
Department of Public Works
Engineering Division
7. Other easements and/or modifications may be necessary
and shall be reflected on the Fina! Map, as designated by the
Public Works Department.
8. The applicant shall arrange a meeting with Public Works
Engineering, Utilities Engineering, Planning, Fire, and
Transportation Departments after approval of the Tentative Map and
prior to submitting the improvement plans. This meeting shal!
determine the scope of all work required and related to offsite
improvements. The improvement plans must be completed and approved
by the City prior to submittal of the Final Map.
Prior to Approval of Final Map
9. Prior to Final Map approval, the applicant shall enter
into a Subdivision Improvement Agreement. This agreement is
required to secure compliance with the conditions of ~RB and
Tentative Map approvals and the security of on and offsite
improvements. Improvement plans shall be submitted in relation to
this agreement. No grading or building permits shall be issued
until the Final Map is recorded with the County of Santa Clara,
Office of the County Clerk-Recorder.
Designation on Improvement Plans
!0. All sidewalks, curbs, and gutters bordering the site
shall be removed and replaced in compliance with Public Works
standards. Additional public street improvements shall be made, as
determined by Public Works Engineering.
I!. Any unused driveways shall be removed and replaced with
curb and gutter.
12. Clear visibility at street corners shall be maintained
for an adequate distance, at a minimum height of 2.5 feet above
grade, per City standards.
Prior to Recordation of Final Map
13. The subdivider shall post a bond prior to the recording
of the Final Map to guarantee the completion of the on and offsite
condition(s) of approva!. The amount of the bond shall be
determined by the Planning, Utilities, and Public Works
Departments.
SECTION 7.Term of Approval.
Tentative Map. All conditions of approval of the Tentative
Map shall be fulfilled prior to approval of a Final Map (PAMC
Section 21.16.010[c]) .
Unless a Final Map is filed, and al! conditions of approval
are fulfilled within a two-year period from the date of Vesting
Tentative Map approval, or such extension as may be granted, the
Tentative Map shal! expire and all proceedings shall terminate.
7
Thereafter, no Final Map shall be filed without first processing a
Tentative Map (PAMC Section 21.16.010 [d]) .
PASSED: 9-0
AYES:Beecham, K!einberg, Cordell,
Morton, Mossar, Drekmeier
NOES: None
Klein, Kishimoto, Barton,
ABSENT: None
ABSTENTIONS: None
:
City Clerk
APPROVED AS TO FORM:
SeniorD~puty City Attorney
P~S AND DRAWINGS REFERENCED:
/~irec, ’ nd
Community Environment
Those plans prepared by BKF Engineers, Surveyors, and Planners
titled "Tentative Map: Hyatt Rickey’s Redevelopment", consisting of
8 pages, dated September 22, 2005.
",=..~:~Oi;£L~ ~’OL;,JMEi’,,’ i ,5 CERTIFIED TO BE:
COPY O~ THE ORIGINAL ON FILE.
;-.7,.- .-, ~;-,.certify (or dec!are) under penalty
" ’ " -ofper.;ury~hatthefore-oin-istFe6~,,,--., .~.-, t.8rid correct."
"~ ~’ ~: ~’°~°si~ ~ ~"-,r-,~.e .........
Special Meeting
December 5, 2005
1.PUBLIC EMPLOYEE PERFORMANCE EVALUATION ................................484
1A.CONFERENCE WITH LABOR NEGOTIATOR .........................................484
2.Emergency Preparedness ...............................................................484
3.Proclamation for Hewlett Packard Garage Commemoration Day ...........485
ORAL COMMUNICATIONS ........................................................................485
APPROVAL OF MINUTES ..........................................................................486
m
Ordinance 4886 entitled "Ordinance of the Council of the City of Palo
Alto Adding Section 22.08.331 of Chapter 22.08 [Park Dedications] of
Title 2 of the Palo Alto Municipal Code to Dedicate a 13.27 Acre Parcel
of Land [Parcel 3] Formerly Known as the Arastradero Gateway
Preserve" (/st Reading 11/14/05, Passed 9-0) ...................................487
Finance Committee Recommendation to Approve the Auditor’s Office
Quarterly Report as of September 30, 2005 ......................................488
Approval of Contract Amendment for $60,000, with a Total Contract
Amount Not to Exceed $165,000 with Mike Miller for Consulting
Services Related to the Utilities Re-Structuring Plan ...........................488
Approval of a Purchase Order with Ditch Witch Sales Bay Area, Inc. in
the Amount of $299,238 for the Purchase of Two Directional Boring
Machines ......................................................................................488
9A.Approval of a Purchase Order with Peterson Tractor Company in the
Amount of $940,755 for the Purchase of a Waste-Handling (Landfill)
Compactor and Waste-Handling Crawler-Dozer .................................488
455 Santa Rita Avenue [05APL-00002]: Appeal by Nancy and Richard
Alexander and Worth and Andy Ludwick of the Director of Planning and
12/05/05 99-481
PUBLIC HEARINGS
10.Public Hearing: Consideration of a Request by DR Horton
Homebuilders on Behalf of Hyatt Equities, Inc. for a Tentative
Map to Merge Two Existing Parcels and Subdivide the Resulting
15.84Acre Site into Eleven Single-Family Lots and One Multiple-
Family Lot for the Development of a Previously Approved Single-
Family and Multiple-Family Condominium Project Located at 4219 El
Camino Real [05PLN-00235]. The Tentative Map also includes the
creation of a New Public Street Between 4219 and 4249 El Camino
Real. This Road Would not Extend to Wilkie Way.
Environmental Assessment: An Environmental Impact Report was
certified by the City Council in June 2004. Zone District: CS(H),
CS(L).
Planning and Community Environment Director Steve Emslie said the
tentative map was limited in its review. The site and design was
approved by the Architectural Review Board (ARB). The item was
appealed to the Council and disposed of by the Council. The item was
a technical followup of the tentative sub-division map; the first of a
two-step process in the State of California to divide land. Staff
recommended the finds be present and the tentative map be
consistent with the ARB’s approval of the site and design. Reference
was made to a memo distributed at the meeting regarding a technical
amendment to the motion that provided clarity concerning the cost
sharing for the shared driveway between the property owners.
Mayor Burch said the matter before the Council was to approve the
Tentative Map.
Mr. Emslie said that was correct.
MOTION: Council Member Morton moved, seconded by Kishimoto, to
approve the staff and Planning and Transportation Commission’s
recommendation regarding the proposed Tentative Map to merge two
parcels and subdivide the resulting 15.84 acre site into eleven single-
family lots and one multiple-family lot for the development of a
previously approved single-family and multiple-family condominium
project, based upon the findings and conditions contained within the
Record of Land Use Action, which includes the cost sharing for the
shared driveway between the property owners.
Public Hearing opened at 8:53 p.m,
Carlin Otto, 231 Whitclem Court, represented the Charleston Meadows
Neighborhood Association and requested the tentative map be
approved for the redevelopment of the old Hyatt Ricky’s property.
There were three main features the association had negotiated: 1) no
pedestrian vehicular access between the high density area of the
development and Wilkie Way; 2) single-family residences on standard
size lots along Wilkie Way; and 3) preservation of mature trees on
Wilkie Way and Charleston Road.
Eric Stietzel, 239 Whitclem Court, echoed Ms. Carlin’s comments.
Herb Borock, P.O. Box 632, said the zoning and comprehensive Land
Use Map should be changed to reflect the residential development. He
suggested putting in multiple-family and single-family Land Use Map
designations and putting in RM-30 and R-1 zoning districts and retain
the landscape combining district. Commercial designation would
permit hotels underneath residential project.
Public Hearing closed at 8:57 p.m.
Council Member Kishimoto asked whether there was a no-pedestrian
access from the multi-family housing area to Wilkie Way and bicycle
access to the Wilkie Way bike bridge.
IVlr. Emslie said the only access was for emergency vehicles from the
multi-family project to Wilkie Way.
Council Member Kishimoto asked where the emergency vehicle access
was located.
Mr. Emslie said it was a shared driveway between two homes gaining
access to Wilkie Way.
Project Manager Mary Grace Houlihan with DR Horton said there was a
pedestrian and bicycle pathway through the project with a connection
from the multi-family area at the corner of Wilkie Way and West
Charleston Road.
PlOT:]:OI~i PASSEl:) 9-0.
11.Public Hearinq: Consideration of an Application by the City of
Palo Alto Public Works Department for the Site and Design Review
and Design Enhancement Exception for a Palo Alto
Utilities/Department of Energy (DOE) Photovoltaic Demonstration
Project Consisting of 10 Solar Trackers and Two Photovoltaic
Carports to be Located Next to the City’s Municipal Service Center
at 3201 East Bayshore Road (05PLN-00255). Zone District: PF(D).
Environmental Assessment: DOE Lead Agency for NEPA Exclusion;
CEQA Categorical Exemption Section 15303.
Planning Manager John Lusardi presented the staff report (CMR:
a,38:05) and noted two changes to Attachment A: 1) Page 1,
paragraph E, to reflect the Planning and Transportation Commission’s
(P&TC) recommendation to approve the carport panels and deny the
trackers; and 2) To delete the Architectural Review Board (ARB)
review in Paragraph F because ARB did not have a formal review of the
project.
Council Member Mossar said she was aware of the ARB not having a
formal review but asked whether ARB reviewed the project and made
comments.
Mr. Lusardi said the ARB reviewed the project and contents of a Study
Session and made recommendations before the P&TC review. A
formal review would need to happen after the P&TC’s review and
recommendations.
Council Member IVlossar asked whether the Council was entitled to a
summary of the Study Session.
Mr. Lusardi said .ludith Wasserman from ARB was present and could
provide the summary information.
Assistant Public Works Director Mike Sartor gave an overview of the
project. He said staff had been working with Department of Energy
(DOE) since September 2003 to implement the Photovoltaic (PV) Solar
Project. The City received a $:[.a, million dollars DOE grant and was
matched by another $1.4 million from the Cities Utilities Department
for a total of a $2.8 million dollar project. The selected photovoltaic
installation would provide a variety of PV technology in locations and
taking advantage of optimum sun exposure. The City’s Municipal
Service Center (IvlSC) was selected as one of the project sites. PV
panels would be installed at the Cubberley Community Center and at
the Bayland’s Interpretive Center with education displays for public
interest. PV panels would be installed at the IvlSC employee parking
area to demonstrate PV use along with shade and energy generation.
PV trackers would be installed in front of the IvlSC to demonstrate a
more effective form of photovoltaic to track the sun for maximum
energy generation. Based on the P&TC’s concerns about the tracker
proposal, an alternate tracker installation was proposed to install five
panels instead of the recommended ten. ]:t addressed most of the
Baylands’ concerns while employing the innovative PV technology
presence along the freeway to enhance the public’s awareness of the
project.
David Arkin, Arkin Tilt Architects, gave an overview and presentation
of the proposed PV trackers for the MSC site. He said the MSC site
presented a visible location in meeting the goal of increasing PV
awareness. The project included two other sites. The Baylands Center
would produce about 25,000 kWh/year and Cubberley Community
Center would generate 48,000 kWh/year, enough for more than six
homes and the rooftop panels would power at least 21 homes. There
were two proposals for the MSC, which included a carport that doubled
as a support structure and would generate 153 kWh/year, enough to
power over 20 homes and the five tracking arrays, initially 10 in the
first proposal. Depending on the selected design, it could power
between 2.5 to 8 different homes. The trackers were approximately
the size of a call box or speed limit sign and smaller than a tree. The
carport structures would provide shade and would hold tracking
arrays. Sixteen panels would be placed on the site. Each panel size
was initially 15 square feet in size and reduced to 10 feet by ::[5 feet.
Council Member Mossar questioned the size of the trackers since they
did not look similar to a traffic sign in the graphics.
Mr. Arkin said from the perspective of a car on the freeway, visually
they would be similar to a traffic sign.
Commissioner Daniel Gather said the project generated a tremendous
amount of discussion with the P&TC. ]:t covered the project’s potential
impact on the MSC site and future uses including the proposed auto
mall, whether alternative locations for the trackers had been
significantly researched, the impact on wildlife, how trackers would be
maintained and used including in power outages, size and useful life of
the panels, signage components being viewed along the two highways,
appropriate placement of the panels in relation to Baylands and the
MSC. The P&TC supported having the PV system in Palo Alto but did
not recommend the project for the following primary reasons: 1) The
trackers did not support the Baylands design principles and the key
issue was that the vertical elements of the trackers were not
consistent with low and horizontal elements in the Baylands; and 2)
The P&TC was not convinced that more appropriate locations had been
fully explored. The Commission did recommend the PV arrays over
the carports.
Council Member Morton asked whether other locations had been
considered.
Mr. Garber said the locations discussed were Cubberley, the Police
Station, IvlSC and Greet Park.
Judith Wasserman, 751 Southampton Drive, said she could not
represent the ARB on this matter because they did not vote. She read
an excerpt from a previous board member, Drew IVlaran, stating he
was in support of the MSC trackers and the project was a non-intrusive
addition along an unattractive stretch of freeway. The location
promoted renewable energy with an innovative display to define the
City’s position on solar power and it deserved support of the Council.
She agreed with Mr. IVlaran’s comments in principle but was in favor of
the smaller size tracking arrays to help lessen the impact of unsightly
panels.
David Coale, 766 ]osina Avenue, was in favor of installing the 10 PV
trackers in front of the MSC site. It was good advertising and sent a
message that Palo Alto was serious about renewable energy and
sustainability.
Herb Borock, P.O. Box 632, felt the Site and Design Review should not
have been placed before the Council and instead forwarded to the ARB
for review. The process before the Planning Commission was also
incorrect because an attempt was made to make a substitute motion
and incorrect advice was given to the Commission.
Emily Renzel, 1056 Forest, suggested installing the unsightly trackers
behind the buildings at the IvlSC. She said the trackers would generate
56,922 kW/yr, which was only 9 percent or approximately 1.1 percent
of solar element of renewable power of the entire PV proposal. The
same amount of energy could be generated either at the Cubberley
site or by placing additional carports at the MSC. She urged Council to
deny installation of the trackers.
Mayor Burch said the issue before Council tonight was to approve the
trackers and carport design located at the MSC site and not the
portions of the project located at Cubberley and the Baylands.
Mr. Lusardi said that was correct.
Council Member Kishimoto asked whether installation on school
property was permissible if it were to be used jointly with the City.
Mr. Sartor said the Department of Energy (DOE) specifically slated the
grant was to be used at City of Palo Alto facilities but did not include
school sites.
Council Member Kishimoto asked what the requirements were for the
visibility.
Mr. Sartor said the grant encouraged educational opportunities.
MOTION: Council Member Kishimoto moved, seconded by Freeman,
to approve the Planning and Transportation Commission’s
recommendation to (:[) deny the site and design review and design
enhancement exception for 10 photovoltaic (pv) tracker arrays located
at the City’s Municipal Service Center (MSC), as part of the City of Pa!o
Alto Utilities Photovoltaic Demonstration project, and (2) approve the
site and design review for the two photovoltaic carports at the MSC,
based upon the findings and conditions in the Record of Land Use
Action.
Council Member Kishimoto agreed with Ms. Renzel’s comment
regarding the unsightliness of the trackers at the MSC and suggested
finding creative ways to achieve a more attractive design.
Council Member Freeman asked whether all the findings were made.
Mr. Lusardi said the P&TC found one was not compatible with the
guidelines and denied the MSC site. Staff felt the Record of Land Use
Actions reflected findings appropriate for the Council’s approval.
Council Member Freeman asked whether the DOE excluded
partnerships where jurisdictions overlapped. Specifically, could the
City partner with a school district that was paying the City for its
utilities.
Mr. Sartor did not feel the grant was that specific.
Council Member Freeman said she was not satisfied a partnership with
the school had been thoroughly vetted through the DOE and asked
whether it had been discussed with the City/School Liaison Committee.
Mr. Sartor said one of the concerns regarding partnership was the
maintenance aspects of the grant program. The City would be
responsible for maintaining the trackers for 30 years. A maintenance
agreement with the School District could be problematic.
Council Member Freeman felt further investigation in a joint
partnership with the School District could be beneficial.
City Manager Benest said the grant did not exclude partnerships but
specified the PV system had to be on City’s facilities. He was
conforming to grant guidelines but did not oppose investigating the
possibility of partnerships in the future.
Council Member Morton asked how much of the grant would be lost if
trackers were denied.
Mr. Sartor said there would be no loss in the grant. Additional panels
would be installed at either the Cubberley site or on the carports.
Council Member Morton said the public relations effect would be lost if
panels were placed elsewhere.
Mr. Sartor said application of another technology or variety of PV uses
would be lost. All other systems were static systems at a fixed angle
to the sun. The trackers would generate 35 percent more energy
since they tracked the sun to maximize the PV output.
Council Member Morton said the main loss was the demonstration
effect of the project.
Mr. Sartor said that was correct.
Council Member Morton asked what would happen to the PV system
should the MSC site become an auto dealership.
Mr. Sartor said the carport installation and trackers could be relocated
but it was unknown if the auto dealership would want to keep the PV
system.
Council Member Morton said he supported the main motion but wanted
to look into funding the trackers.
SUBSTITUTE MOTION: Council Member Mossar moved, seconded by
Morton, to send the proposals for the tracker arrays located at the
City’s Municipal Service Center (MSC), as part of the City of Palo Alto
Utilities Photovoltaic Demonstration project, to the AEB for review and
recommendations to the Council, and to approve the site and design
review for the two photovoltaic carports at the IvlSC, based upon the
findings and conditions in the Record of Land Use Action (Attachment
A).
Vice Mayor Kleinberg supported the substitute motion because it was
important in terms of sustainability and promoting clean energy
sources. She was interested in seeing the outcome of the AEB’s
review on how trackers would match the Baylands Master Plan. She
was not in favor of forwarding the item to the City/School Liaison
Committee and was concerned about trackers on school property
interfering with the playgrounds. She suggested the rooftop
applications on school properties.
Council Member Cordell said the pictures of the panels looked
interesting and she did not find them to be unsightly. She was
interested in seeing the AEB’s formal review. Visibility of the trackers
sent a message Palo Alto was a community concerned about solar
energy. She supported the substitute motion.
Council Member Beecham echoed Council Member Cordell’s comments
and looked forward to having the AEB find a good solution. He
supported the substitute motion.
Mayor Butch supported the substitute motion and suggested the
possibility of placing the trackers at locations where they could be
observed in motion. He suggested three panels at the MSC site and
three at a park or near the Duck Pond.
Council Member Kishimoto said the amount of money being invested
for the system would be the same amount of electricity being
produced without having to intrude in the Baylands. There was no
trade off in energy and she felt it was not the place to make an
aesthetic change. She was in favor of solar energy and open to
hearing creative solutions from the AEB or the Public Art Commission
(PAC). She did not support the substitute motion.
Council Member Freeman said she was not against alternative energy
sources and echoed Council Member Kishimoto’s comments. She
clarified use of trackers at schools was not the issue but the use of
photovoltaic on rooftops of the schools. She did not support the
substitute motion.
Council Mossar clarified her motion was not to look at alternative sites
and for the ARB to evaluate the proposal placed before the Council.
Council Member Morton had concerns of sending the tracker
component to the ARB and jeopardizing the educational opportunity
requirement of the grant and not meeting the grant timeline.
Mr. Sartor said the educational component would not be affected. A
meter would be displayed outside the Baylands ]:nterpretive Center to
run backwards to indicate how power was being generated instead of
being used. The plan was to proceed with the design and anticipate
the installation at Cubberley, Baylands :Interpretive Center and the
carports. DOE granted an extension on completing the program
through _June 30, 2007, and there would be time to look at trackers.
Council Member Beecham said there were comments regarding the
high cost of the project. He clarified the project was experimental and
the purpose of the DOE grant was for monies dedicated for unusual
projects for the general public’s benefit. The electricity would be
generated during the peak hours in the summer when energy cost
would be at the highest and he wanted the public to know the project
cost was not out of line.
SUBSTITUTE MOTION PASSED 6-3 Freeman, Kishimoto, Ojakian
voting no.
This document is recorded for the
benefit of the City of Palo Alto
and is entitled to be recorded
free of charge in accordance with
Section 6103 of the Government Code
After Recordation, mail to:
OFFICE OF THE CITY ATTORNEY
250 Hamilton Avenue
Palo Alto, CA 94301
AGREEMENT BETWEEN SUBDIVIDER AND
CITY OF PALO ALTO
UNDER PROVISIONS OF TITLE 21 OF THE
PALO ALTO MUNICIPAL CODE
4219 El Camino Real, Palo Alto, California
Assessor Parcel Numbers:
147-47-035
147-47-038
THIS AGREEMENT ("Agreement") is made and executed this day of
,2006, by and between the CITY OF PALO ALTO, a municipal
corporation of the State of California, hereinafter referred to as "City" and WESTERN
PACIFIC, INC., a Delaware Corporation, hereinafter referred to as "Subdivider";
WITNESSETH:
WHEREAS, Subdivider is the owner of that certain tract of land situated in the City of
Palo Alto, County of Santa Clara, State of California, generally known and described as
4219 El Camino Real, Palo Alto, California, Santa Clara County Assessors Parcel Numbers
147-47-035 and 147-47-038, (the "Property"); and
WHEREAS, Subdivider has presented to City for approval a final subdivision map
prepared by BFK Engineers, hereinafter referred to as the "Map" and incorporated herein by
this reference; and
WHEREAS, on December 5, 2005, City approved Subdivider’s application for a
Tentative Subdivision Map to subdivide four (4) existing parcels into twelve (12) lots ("the
Project"), subject to certain conditions including those hereinafter described; and
WHEREAS, such conditions include the demolition and construction of certain
private and public improvements; and
WHEREAS, Subdivider has requested approval of the Map prior to
construction and completion of the required improvements and the payment to City of a
Page 1 of 12
below-market-rate ("BMR") program in-lieu fee to comply with City’s BMR program
requirement for subdivisions, as set forth in Program 20 of the Housing Element of City’s
Comprehensive Plan the BMR fee; and
WHEREAS, City desires to assure that said proposed private and public
improvements will be done in a good and workmanlike manner and in accordance with the
laws now in force and effect in the City of Palo Alto, California, particularly, but not
exclusively, Titles 8, 16, 18, and 21 of the Palo Alto Municipal Code;
NOW, THEREFORE, for and in consideration of the approval of the Map and
the acceptance of the dedications offered therein, and to insure satisfactory performance by
Subdivider of Subdivider’s obligations under the Subdivision Map Act and the Palo Alto
Municipal Code, Subdivider and City (collectively, the "Parties") hereto mutually covenant
and agree as follows:
1. Performance of Work. Subdivider shall, at its own cost and expense, do
and perform, or cause to be done or performed, in a good and workmanlike manner, all of
the work and improvements, within and/or without the subdivision, that are shown on the
Map, or on plans, profiles and specifications that have been submitted to the City Engineer
or that may hereafter be so submitted, as finally approved, or that are required as conditions
of approval of the subdivision by the City, or that are required to be done by any provision of
law as a condition of said subdivision. Said public and private improvements include, but
are not limited to:
a) Off-Site Improvements Plans for Arbor Real, prepared by BKF
Engineers dated May 15, 2006 and as subsequently revised.
b) On-site Improvements Plans for Arbor Real, prepared by BKF
Engineers dated May 15, 2006 and as subsequently revised.
Notwithstanding the foregoing, City has determined that the off-site
sanitary sewer mitigation for the project includes replacement of the existing sanitary sewer
main in West Charleston Road between Wilkie Way and Alma Street. City shall do and
perform such sanitary sewer main replacement. Said work shall be done at the cost and
expense of Subdivider, in the amount of One Hundred Sixteen Thousand Two Hundred Fifty
Five Dollars and Sixteen Cents ($116,255.16), of which sum City acknowledges receipt.
Said sum shall be credited against any other sewer connection and capacity fees that might
otherwise have been charged by City to Subdivider, and Subdivider is not required to pay
any additional City sewer fees.
2. Standards. Work to be performed hereunder shall be done to the
satisfaction of the City Engineer. All improvements have been shown in detail upon the
plans, profiles and specifications that have been prepared by engineers acting for
Subdivider. No work on the improvements shall be commenced until said plans, profiles and
specifications have been submitted to and approved by the City Engineer, and all
improvements shall be constructed in accordance with said plans, profiles and
specifications. Subdivider shall do, or cause to be done, all work and furnish all materials
Page 2 of 12
necessary, in the City Engineer’s opinion and on his or her order, to complete the
improvements in accordance with said plans, profiles and specifications, or with any
changes required or ordered by the City Engineer, which in his or her opinion are necessary
or required to complete the work. The cost of checking the plans, profiles and specifications,
and of all inspections of the work, have been or shall be paid by Subdivider. Improvements
and methods of installation shall, at a minimum, meet the standards set forth in the
"Standard Specifications of the City of Palo Alto," dated December 1992, ("Standard
Specifications") as from time to time amended, which document is incorporated herein by
this reference, and provisions of the Palo Alto Municipal Code relating to construction.
3. Soils and Geoloqic Tests. Subdivider shall cause to be made, at
Subdivider’s cost and expense, soils and geologic tests by a qualified civil engineer and shall
file, or cause to be filed with the City a report or reports satisfactory to the City Engineer
indicating gradation, bearing and resistance value of soils within the subdivision and setting
forth recommendations for or constraints on the nature of required improvements and for
development of the Property. All clearing and earthwork shall be accomplished in
accordance with the plans and required recommendations of the soils report under the
supervision of the Soils Engineer. Subdivider shall also cause to be made, at Subdivider’s
cost and expense, all compaction tests necessary to determine that the utility trenches have
been satisfactorily compacted. Subdivider shall provide a soils engineer’s certified letter of
compliance, verifying that the earthwork has been completed in accordance with the plans
and recommendations of the soils report.
4. Time of Completion. The demolition of the existing structures, as
required under Paragraph l(a) hereof, has been completed to the satisfaction of the City
Engineer. All other improvements and site grading under this Agreement necessaryfor and
directly related to the occupancy of certain designated portions of the Project, as such
designated portions are from time mutually defined by the City Engineer and Subdivider,
shall be completed prior to the issuance of any occupancy permit for occupancy of such
designated portions of the Project. By way of example only, the Wilkie Way improvements
shall be completed prior to the issuance of an occupancy permit for the Wilkie Way
residences. The time for completion of any improvements other than those specified in the
second sentence of this Paragraph 4 may be extended only for good cause upon approval
by the City Manager and pursuant to the provisions of the Palo Alto Municipal Code.
5.Time of Essence. Time is of the essence of this Agreement.
6.Payment of Costs. Without limitation, Subdivider shall pay, or cause to
be paid, all costs and expenses related to or arising from the performance of any work
hereunder, including, but not limited to, payment for any materials, provisions, and other
supplies used in, upon, for or about said work, and for work or labor thereon of any kind, and
for amounts due under the Unemployment Insurance Act of the State of California, with
respect to such work or labor.
7. Acceptance of Work. The City Engineer shall have the right to reject
any and all work to be performed under this Agreement if such work does not conform, in his
Page 3 of 12
sole judgment, with the plans, profiles and specifications mentioned herein and with the
ordinances and standards of City.
8. Warranty of Plans. Notwithstanding the fact that Subdivider’s plans,
profiles and specifications, completion of work, and other acts to be performed hereunder
are subject to approval by City, it is understood and agreed that any approval by City shall in
no way relieve Subdivider of satisfactorily performing said work or its obligations hereunder.
Subdivider warrants that the plans, profiles and specifications submitted shall conform at a
minimum to the Standard Specifications and the Palo Alto Municipal Code, and that they are
adequate to accomplish the work in a good and workmanlike manner, and in accordance
with sound construction practices.
9. Repairs and Replacement. Prior to final acceptance of the completed
work by the City Engineer, Subdivider shall replace, or have replaced, or repair, or have
repaired, all improvements and monuments shown on the Map that have been destroyed or
damaged, and Subdivider shall repair, or have repaired, replace, or have replaced, or pay to
the owner, the entire cost of replacement or repairs, of any and all property damaged or
destroyed, by reason of any work done hereunder, whether such property be owned by the
United States or any agency or political subdivision thereof, or by the City or by any public or
private corporation, or by any person whomsoever, or by any combination of such owners.
Any such repair or replacement shall be to the satisfaction, and subject to the approval, of
the City Engineer.
Prior to release of the certificate of deposit posted by Subdivider and/or
final acceptance of the completed work, Subdivider shall repair, or cause to be repaired, to
the satisfaction of the City Engineer, any damage to the improvements constructed pursuant
to this Agreement that may occur after installation.
10. Warranty. Without limiting the foregoing, Subdivider expressly warrants
and guarantees all work performed hereunder and all materials used or a period of three (3)
years after completion and final acceptance thereof by the City Engineer. If within said three
(3) year period any structure or part of any structure furnished and/or installed or constructed
by Subdivider under this Agreement, or caused to be installed or constructed by Subdivider
under this Agreement, or any of the work done under this Agreement, fails to fulfill any of the
requirements of this Agreement, or the specifications referred to herein as a result of
inadequate workmanship or materials, Subdivider shall, without delay and without any cost
to City, repair and replace or reconstruct any defective or otherwise unsatisfactory part or
parts of the work or structure. Should Subdivider fail to act promptly or in accordance with
this requirement, or should the exigencies of the situation require repairs or replacements to
be made before Subdivider can be notified, City may, at its option, make the necessary
repairs and replacements or perform the necessary work, and Subdivider shall pay to the
City the actual cost of such repairs and replacement.
11. Breach of Aqreement; Performance by City. If Subdivider shall refuse or
fail to satisfactorily complete any of the work and improvements provided for herein within
the time specified above, or any extension or extensions thereof, or if delay in the
construction of any portion of the improvements shall, in the opinion of the City Engineer,
Page 4 of 12
endanger property outside the boundaries of said tract, or if Subdivider should be adjudged
a bankrupt, or shall make a general assignment for the benefit of Subdivider’s creditors, or if
a receiver should be appointed in the event of Subdivider’s insolvency, or if Subdivider, or
any of Subdivider’s contractors, subcontractors, agents or employees, should violate any of
the provisions of this Agreement, the City Engineer or City Council or its designated
representative may serve written notice upon Subdivider for breach of this Agreement, or
any portion hereof.
Following Subdivider’s receipt of any such notice, City may, without
relieving Subdivider of any of its obligations hereunder, take over any or all of the work and
prosecute the same to completion, by contract or by any other method City may deem
advisable, for the account, and at the expense of Subdivider, and the full cost and expense
of said work done by City shall be recoverable by City from Subdivider.
12. Estimate of Improvement Costs; Security. The estimated cost for
improvements to be constructed under this agreement is One Million Seven Hundred Fifty
Thousand Dollars ($1,750,000). Said estimate includes applicable amounts for the expense
of checking plans and for inspection of work hereunder. A full and detailed accounting of
said estimate is set forth in Exhibit "A", which is attached hereto and incorporated herein by
this reference.
To guarantee faithful performance of all of the provisions of this
Agreement and compliance with all of the provisions of the Palo Alto Municipal Code,
including Titles 8, 16, 18, and 21, and to secure payment to the contractor, his or her
subcontractor and to persons renting equipment or furnishing labor or materials to them for
the improvements required under this Agreement, this Agreement shall be secured by good
and sufficient security, which shall be filed with City prior to certification of the Final
Subdivision Map by the City Engineer. Such improvement security shall, at the election of
the Subdivider, consist of either: (a) a faithful performance bond or bonds by one or more
duly authorized corporate sureties; or (b) a deposit, either with City or a responsible escrow
agent or trust company, selected by City, of cash or negotiable bonds of the kind approved
for securing deposits of public monies, or (c) an irrevocable instrument of credit from one or
more responsible financial institutions regulated by State or Federal government and
pledging that the funds are on deposit and guaranteed for payment on demand by City. The
form of all documents relating to such security shall be subject to approval by the City
Attorney. The corporate surety bond shall conform substantially with the form set forth in
Section 66499.1 of the Map Act. The estimated cost of the various features of the work of
improvement shall be used, if applicable, as the basis for the reduction of bonds in
connection with the final completion of any feature of the work (or any unit thereof). Costs
referred to herein are as set forth on the Engineer’s Estimate for the Subdivision, as
submitted for approval to, and on file in the office of, the City Engineer. Concurrently upon
the execution of this Agreement and upon the posting by Subdivider of the improvement
security set forth in this Paragraph 12, City shall accept all streets and easements dedicated
on the Final Subdivision Map or deeded by Subdivider in connection therewith.
13. Permits; Compliance with Law. Subdivider shall, at Subdivider’s
expense, obtain all necessary permits and licenses for the work and improvements
Page 5 of 12
hereunder, give all necessary notices and pay all fees and taxes required by law. Subdivider
shall include in the CC&R’s that prior to removing any tree, within the project, a Regulated
Tree removal application with fees shall be submitted for a tree removal permit issued by the
Department of Planning and Community Environment. In the performance of this
Agreement, Subdivider shall comply with all laws, ordinances, regulations and rules of all
governmental agencies having jurisdiction therefor, including but not limited to, the
provisions of the Labor Code of the State of California.
14. Inspection by City. Subdivider shall at all times maintain proper facilities
and provide safe access for inspection by City to all parts of the work.
15. Subdivider Not Aqent of City. Neither Subdivider nor Subdivider’s
contractors, subcontractors, agents, officers, or employees are agents or employees of City,
and Subdivider’s relationship to City, if any, arising herefrom is strictly that of an independent
contractor.
16. Liability. Neither City nor any of its officers, agents, or employees shall
be liable to Subdivider, its contractors, subcontractors, officers, agents, or employees, for
any error or omission, or any obligation whatsoever, arising out of or in connection with any
work to be performed under this Agreement. City, its officers, agents, and employees shall
not be liable to the Subdivider or to any person, firm or corporation whatsoever, for any error
or omission, or any obligation or liability whatsoever, arising out of or in connection with any
work to be performed under this Agreement. City, its officers, agents, and employees shall
not be liable to Subdivider orto any person, firm, or corporation whatsoever for any injury or
damage that may result to any person or property or any obligation whatsoever from any
cause arising in, on, or about the land of Subdivider or from performance or failure to
perform any provision of this Agreement. Subdivider hereby releases and waives any claim
it may possess or come to possess against City, its officers, agents, and employees.
17. Hold Harmless. Subdivider hereby agrees to and shall protect,
indemnify and hold City, its officers, agents, and employees harmless from any and all
liabilities, obligations, damages, costs, injuries, or claims thereof, including but not limited to,
claims for damage or personal injury, including death, and claims for property damage,
arising in any manner from the performance or failure to perform the provisions of this
Agreement. Subdivider agrees to, and shall, defend City, its officers, agents, and
employees, from any suits or actions at law or in equity for damages, liabilities, or obligations
caused by or arising from, or alleged to be caused by or arising from, the performance of this
Agreement.
18. Use of Improvements. Subdivider agrees that the use of any and all of
the public improvements hereinabove specified for any purpose and by any person shall be
at the sole and exclusive risk of Subdivider at all times prior to final acceptance by City. This
shall in no way eliminate, discharge or lessen any of Subdivider’s obligations and
undertakings contained in this Agreement. The issuance of any occupancy permits by City
for dwellings located within the subdivision shall not be construed in any manner to
constitute acceptance or approval of any or all of the improvements to be constructed
hereunder.
Page 6 of 12
19. Insurance. Prior to the commencement of any work, Subdivider shall
furnish to City, on City’s standard form certificate of insurance, satisfactory evidence of a
policy of liability insurance which shall be maintained at all times during the performance of
this Agreement, in form and by a responsible company satisfactory to City, insuring City, its
officers, agents, and employees against loss or liability arising out of the condition of the
premises or any of the work to be performed under this Agreement, including all costs of
defending any claim arising as a result thereof. Both bodily injury and property damage
insurance shall be on an occurrence basis, and said policy or policies shall provide that the
coverage afforded thereby shall be primary coverage to the full limit of liability stated in the
declarations, and that if any of City insureds have other insurance against the loss covered
by said policy or policies, the other insurance shall be excess only. Said policy or policies
shall provide for minimum limits in the amount of One Million Dollars ($1,000,000) for bodily
injury or death, each person, and One Million Dollars ($1,000,000) for bodily injury or death,
each occurrence, and One Million Dollars ($1,000,000) for property damage, each
occurrence. Each policy shall contain an endorsement that said policy shall not be canceled
or coverage reduced except upon thirty (30)days advance written notice thereof to City.
Subdivider will be required to obtain a "Permit for Construction in a Public Street" ("Permit")
prior to constructing any of the improvements set forth in Paragraph 1 or Exhibit "A" hereof.
City will consider a request by Subdivider that the insurance posted for the Permit also be
used to satisfy the insurance obligation of this Paragraph 19.
20. Title to Public Improvements. Title to and ownership of all public
improvements constructed hereunder shall vest absolutely in City, upon completion and
acceptance thereof by City.
21. Final Drawinqs. Upon completion of all improvements, subsequent to
acceptance thereof by City, Subdivider shall supply City with one (1) permanent (mylar--3
mil) reproducible set of"as-built" drawings. These drawings shall be certified as being "as-
builts" and shall reflect the job as actually constructed, with all changes incorporated therein.
The requirements of this Paragraph 21 shall not apply to the private improvements to be
performed hereunder, specified as Items 9-12 of Exhibit "A" hereof. However, Subdivider
shall comply with all requirements of Titles 16 and 18 of the Palo Alto Municipal Code
concerning all public and private improvements required to be performed hereunder.
22. Notice of Completion. Subdivider shall file, or cause to be filed, a Notice
of Completion of the improvements herein specified.
23. Final Inspection, Acceptance and Certification. All of the improvements
must be completed prior to the final inspection. Notice in writing, requesting final inspection
shall be submitted to the City Engineer at least five (5) days prior to the anticipated date.
Upon the satisfactory completion of the improvements by Subdivider, the City Engineer shall
certify that the work of said improvements has been satisfactorily completed. Such
certification shall be made in writing in accordance with standard City procedures.
Page 7 of 12
24.Trees in Project, Wilkie Way Properties and Off-Site Riqht-of-Way
(Project).
a) Subdivider shall engage Mayne Tree Experts, Co. to implement
recommendations and conduct a mitigation monitoring tree preservation inspection program,
providing quarterly and annual tree monitoring report for the Project trees. The written
annual tree monitoring report shall include all quarterly activity address to the Planning
Department Landscape Specialist, 250 Hamilton Avenue, Palo Alto, CA 94301.
b) For a period of five (5) years following completion of construction,
Subdivider shall maintain a security guarantee (faithful performance bond or bonds by one
or more duly authorized corporate sureties or other approved form) in an amount equal to $
$208,820.00 to secure the health and/or replacement, as the case may be, of the trees in
the Project. Use of the security guarantee shall be determined after reviewing the annual
tree monitoring report at the end of the five (5) year period. If all trees survive, the security
deposit shall be returned. If replacement trees are required, the project sponsor shall plant
trees as specified by the City. In the event replacement trees are required, an appropriate
portion of the security guarantee shall be withheld as further security to ensure survival of
the replacement trees for a new five (5) year period.
25. Grade Differential. The Project that is the subject of this Agreement
shall return to the City Council for further approval if there is a change in the grade
differential of one (1) foot or greater in height from neighboring sites.
26. ARB Compliance. The Project shall be constructed in compliance with
al! conditions established by the ARB, which conditions are set forth in full in Attachment C
to that certain letter dated August 30, 2005 from Steven Turner to Mary Grace Houlihan.
27. Assi.qnment of Contract. Neither this Agreement, nor any part hereof,
shall be assignable by Subdivider without the written consent of City. Any attempted
assignment without first obtaining such consent shall be void and of no effect.
28. Bindin.q on Successors. The terms, covenants and conditions of this
Agreement shall run with the land and shall apply to, and shall bind, the heirs, successors,
executors, administrators, assigns, contractors, and subcontractors of the parties.
29. Costs and Attorneys’ Fees. The prevailing party in any action brought to
enforce the terms of this Agreement or arising out of this Agreement may recover from the
other party its reasonable costs and attorneys’ fees expended in connection with such an
action.
30. Notices. All notices hereunder shall be given in writing and mailed,
postage prepaid, by certified mail, addressed as follows:
To City:Office of the City Clerk
250 Hamilton Avenue
Palo Alto, CA 94301
Page 8 of 12
To Subdivider:Western Pacific Housing, Inc.
6658 Owens Drive
Pleasanton, CA 94588
With a copy to:Miller, Starr & Regalia
300 Hamilton Avenue, Third Floor
Palo Alto, CA 94301
Attn: Robin Kennedy
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in
duplicate the day and year first above written.
CITY OF PALO ALTO WESTERN PACIFIC HOUSING, INC.
By: By:
Emily Harrison Ed Galigher
Its:Assistant City Manager Its:Vice President
APPROVED AS TO FORM:
By:
Its: Deputy City Attorney
APPROVED AS TO CONTENT:
By:
Its:
Glenn Roberts
Director of Public Works
By:
Its:
Steve Emslie
Director of Planning and Community
Environment
Page 9 of 12
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF .)
COUNTY OF )
On , before me,., a notary public in
and for said County, personally appeared , personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument, and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Page 10 of 12
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF )
COUNTY OF )
On , before me,, a notary public in
and for said County, personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument, and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), orthe entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Page 11 of 12
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF )
COUNTY OF .)
On , before me,, a notary public in
and for said County, personally appeared , personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument, and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Page 12 of 12
This document is recorded
for the benefit of the City
of Palo Alto and is entitled
to be recorded free of charge
in accordance with Section 6103
of the Government Code.
After Recordation, mail to:
OFFICE OF THE CITY ATTORNEY
250 Hamilton Avenue
Palo Alto, CA 94301
AGREEMENT BETWEEN
WESTERN PACIFIC HOUSING, INC., A
DELAWARE CORPORATION, DBA D.R. HORTON, INC.
AND CITY OF PALO ALTO REQUIRING PROVISION
OF BELOW-MARKET-RATE DWELLINGS AND IN-LIEU FEE PAYMENTS AT
4219 El Carnino Real
APN 147-47-038 & 147-47-035
Palo Alto, California
THIS AGREEMENT ("Agreement") is made and executed this __ day
of ., 2006 by and between the CITY OF PALO ALTO, a municipal corporation
of the State of California, hereinafter referred to as "City", and WESTERN PACIFIC
HOUSING, INC., a Delaware corporation dba D.R. HORTON, INC., hereinafter referred to
as "Owner" or "Developer." City and Owner/Developer are hereinafter collectively referred
to herein as the "Parties."
RECITALS:
Owner owns and intends to develop that certain real property in the City of Palo
Alto, County of Santa Clara, State of California, generally known and described as
42!9 El Camino Real, Palo Alto, California (the "Property") and more particularly
described in Exhibit A (property description) attached to this Agreement and made a
part of it by this reference.
The fifteen and eighty-four one hundredths (15.84) acre site is zoned Commercial
Service (CS) and presently comprises four (4) legal parcels previously occupied by
the Hyatt Rickey’s Hotel, which was demolished to build the Project. The Project
involves creation of twelve (12)legal parcels and the construction of a total of one
hundred eighty-one (181) new homes, including one hundred seventy (170)
attached and detached townhouse style condominium, ownership units (on one
legal parcel) and eleven (11) single-family homes to be built along the Wilkie Way
frontage of the site [on eleven (11) separate legal parcels]. The townhouses will
include a mix of two (2), three (3) and four (4) bedroom units in various floor plans
ranging in size from about 1,422 to 2,822 square feet of interior living space. The
eleven (11 ) single-family homes will range in size from 2,038 to 2,136 square feet
and offer two (2) and three (3) bedroom floor plans.
The Project is subject to the City’s Below Market Rate (BMR) requirements as
contained in Program H-36 of the Comprehensive Plan (Chapter 4 - Housing)
providing that a developer of new housing shall either provide below-market-rate
("BMR") dwelling units and/or pay BMR in-lieu fees.
NOW, THEREFORE, the Parties mutually covenant and agree as follows:
Below-Market-Rate Proqram Obli.qations. Owner agrees to provide, at its sole cost
and expense, thirty-four (34) BMR units on the Property and to pay BMR in-lieu
fees, as follows:
BMR Requirement. The project is subject to a twenty percent (20%) BMR
requirement. The Director of the Department of Planning and Community
Environment ("Director") and Developer have agreed that a combination of
on-site BMR units and in-lieu fees will be provided to the City in satisfaction
of the BMR program, as follows:
(1)Thirty-four (34) for-sale BMR units will be provided within the one
hundred seventy (170) multi-family units under the rules and
procedures of the BMR program. The thirty-four (34) BMR units equal
twenty percent (20.0%) of the one hundred seventy (170) multi-family
units being developed in the Project; and
(2)To satisfy the twenty percent (20%) BMR obligation for the eleven
(11) single-family homes, the Developer shall pay to the City, upon
the close of escrow on the initial sale of each completed home, a
BMR program in-lieu fee.
Calculation and Payment of In-Lieu Fees: The total in-lieu fee paid to the City
for each of the eleven (11) single-family homes shall be equal to ten percent
(10%) of the sum of the actual sales price (or fair market value, if greater) of
each single-family home, plus the purchase price (if not included in the sales
price of the home) of all add-ons, options, fixtures, appliances, landscaping,
equipment and furniture that the buyer purchases from the Developer, or its
contractors, prior to the close of escrow and transfer of title from the
Developer to the initial homebuyer.
The in-lieu payment for each home shall be due and payable at close of
escrow. The in-lieu fee for any home that is not sold after its completion
shall be due and payable at the earlier of its first occupancy or twelve (12)
months from the City’s approval of an occupancy permit for the home. The
in-lieu fee for a home not sold shall be ten percent(10%) of the home’s fair
market value as of the date of City approval of the occupancy permit as
e ¯
determined by an appraisal prepared by the City. The Developer shall
reimburse the City for its costs in preparing the appraisal.
The City Attorney may require an enforceable security agreement or other
document, such as a note and deed of trust recorded against the single-
family parcels, to secure payment of the total estimated amount of the in-lieu
fees. Exhibit E describes in further detail the City’s process for determining
and collecting in-lieu fees on for-sale housing units and the documentation
typically required from the Developer and its escrow agent.
Desi.qnation of BMR Units: Based on the unit mix, square footage, the
different floor plans and other features of the multifamily portion of the
Project as shown in the final plans, the Parties have agreed that the thirty-
four (34) BMR units described in this Agreement that Developer will provide
shall constitute full satisfaction of the City’s BMR Program for the one
hundred seventy (170) unit multi-family component of the Project. The
specific thirty-four (34) BMR units are described in detail in Exhibits B and C
to this Agreement. The final construction plans for the building permit(s)
shall designate each BMR unit. The Director, prior to issuance of the first
building permit, shall approve the final BMR unit designations, locations and
floor plans for consistency with this Agreement.
BMR Unit Sales Prices: Pricing for the BMR units has been set based on the
methodology, assumptions and other factors shown in Exhibit D - BMR
Sales Price Calculations. In accordance with Program H-36 of the Housing
Element as adopted on December 2, 2002, there are two (2) levels of
affordability and pricing. Twenty-five (25) of the thirty-four (34) BMR units
shall be priced to be affordable to buyers at the lower range of the moderate-
income level [i.e., households with incomes between eighty percent (80%)
and one hundred percent (100%) of the median income]. The remaining
nine (9) BMR units are priced to be affordable to buyers at the higher range
of the moderate-income level [i.e., households with incomes between one
hundred percent (100%) and one hundred twenty percent (120%) of the
median income].
Possible Increase or Decrease in BMR Sales Prices: The BMR unit prices
have been set using the area median income ("AMI") for Santa Clara County
of One Hundred Five Thousand Five Hundred Dollars ($105,500.00) for a
four (4)-person household in effect as of February 25, 2005. Estimated home
mortgage interest rates of six percent (6.00%) as of April 1,2005 for a low
down-payment loan were also used to derive affordable BMR unit prices.
Because the units will not be completed and available for purchase for
several years after the date of the tentative price calculations, a provision for
the readjustment of BMR prices to reflect major changes in home mortgage
interest rates and/or the AMI is included in this Agreement. The City will
recalculate the BMR sales prices just prior to the initiation of the BMR unit
sales and marketing process, provided that:
Interest rates on loans commonly available to BMR buyers have
increased, or decreased, by one-half percent (0.5%) or more; and/or
(2)The then-current AMI for Santa Clara County has increased, or
decreased, significantly in an amount that would produce price
changes that are equivalent to a one-half percent (0.5%) increase or
decrease in interest rates.
The City will use then prevailing interest rates and/or the then-current
AMI for the recalculation of the BMR unit sales prices using the
methodology, assumptions and other factors in Exhibit D - BMR
Sales Price Calculations.
f o Pro.qram Administrator: The Department of Planning and Community
Environment administers the BMR program. The City’s current contract
pro.qram administrator for the BMR pro.qram is the PAHC Housin.q Services,
LLC (PAHC). The City may assign any or all of the administrative duties,
including review, approval and monitoring functions, to its program
administrator or other designee. The City will notify Developer, in writing, if
there is a new contract program administrator.
Term of Deed Restrictions. The initial term of the deed restrictions applicable
to the BMR units beginning with the first sale to a BMR qualified buyer shall
be fifty-nine (59) years. A new term of affordability enforced through deed
restrictions commences with each future sale or transfer of each BMR unit.
Construction, Finishin.q and Amenities. The BMR units shall be comparable
in all aspects to the market-rate housing units including, but not limited to,
construction quality, appliances, cabinets, kitchen and bathroom fixtures,
appearance, flooring materials, finish work, amenities, storage units, parking
spaces, and access to all facilities. Owner may request permission from the
Director to use different interior finishes, appliances and fixtures in the BMR
units than in the market-rate units. Any such substitute materials and
equipment must still be of very good quality and durability. Any such request
should be submitted to the City at least sixty (60) days prior to issuance of
the Project’s first building permit. The Director must approve substitute
materials in writing. Prior to the close of escrow for the sale of each BMR
unit, the City shall inspect the BMR unit to determine that it meets the
construction and finishing standards stated in this Agreement and, if so, the
City Manager shall approve the acceptance of each BMR unit into the
program.
Sale of BMR Units. Owner expressly grants City a right, following completion
of construction of the project and issuance of occupancy permits for the units
by City, to purchase the thirty-four (34) BMR units at the prices described
herein and, at the appropriate time in each sale’s transaction, the City will
assign its right to purchase to a qualified buyer approved by the City. At
close of escrow for each BMR unit, Owner shall execute a grant deed, with
4
o
the BMR Deed Restrictions attached, to each buyer. A copy of the current
BMR Deed Restrictions is attached as Exhibit F. The City may revise the
Deed Restrictions before the initial sale of the BMR units, in which case the
revised Deed Restrictions as provided by the City shall be recorded with the
grant deed.
Cooperation in Sale Efforts. Developer acknowledges the receipt of a
summary description of the standard policies and procedures that have been
used for the administration of new BMR sales by the City and PAHC entitled
Sales Procedures for New Below Market Rate (BMR) Ownership Unit.~
(Attachment E to the BMR letter agreement executed by Developer and City
on November 29, 2005). This process of buyer qualification, selection and
sales process is described in more detail in the BMR Program Procedures
Manual. Developer shall cooperate with City, the BMR unit buyers and the
City’s program administrator as necessary in the sale of the BMR units.
However, due to the large number of BMR units being sold in the Project,
together with the experience of Developer’s related entities with marketing,
educating moderate income homebuyers, and financing affordable
ownership units in projects of this size, City and Developer agree to meet,
with PAHC, to discuss and prepare a project-specific BMR sales program for
the Project. The project-specific BMR sales program will address topics
such as the adequacy of the existing BMR program-wide waiting list and the
need for additional marketing, buyer information and education, the addition
of Developer’s preferred lender to the BMR lender’s list, the pre-qualification
of buyers, and financing opportunities that Developer may be able to offer to
the BMR buyers.
Project CC&Rs. The declaration of covenants, conditions and restrictions for
the condominium project at the Property (the "Declaration") shall provide the
same membership, voting and other rights for owners of the BMR units as for
owners of all other residential units at the Property. To the maximum extent
permitted by the California Department of Real Estate ("DRE"), the
Declaration will provide that all regular and special assessments will be
allocated among unit owners on the basis of the respective interior living floor
area of the units (i.e., interior floor square footage, excluding the square
footage of patios, balconies, and garage spaces), as calculated by the
project architect; provided, however, that the Declaration may provide for an
equal allocation of assessments among market rate units, or any other
allocation of assessments among market rate units permitted by the DRE,
provided that the proportionate assessment allocated to any BMR unit is not
greater than the percentage that would have been allocated to that unit if the
allocation among all units had been made on the basis of the respective
interior living floor area areas of all units.
Reduction of Units. Except in the case of an event of force majeure that prevents,
for a period of more than five (5) years, and then for only so long as the event of
5
o
force majeure prevents such construction, the construction of fifty percent (50%) or
more of the multi-family units, the terms of this Agreement shall not be altered, even
if the number of units, size of units, or any other aspect of the project is altered.
Bindin.q on Successors. The terms, covenants and conditions of this Agreement
shall run with the land and shall apply to, and shall bind, the heirs, successors,
executors, administrators, assigns, contractors, and subcontractors of the Parties.
Costs and Attorneys’ Fees. The prevailing party in any action brought to enforce the
terms of this Agreement or arising out of this Agreement may recover from the other
party its reasonable costs and attorneys’ fees expended in connection with such an
action.
Notices. All notices hereunder shall be given in writing and mailed, postage
prepaid, by certified mail, addressed as follows:
To City:Office of the City Clerk
CITY OF PALO ALTO
250 Hamilton Avenue
Palo Alto, CA 94301
To Owner:Western Pacific Housing, Inc.
DR Horton, Inc.
Attn: Division President
6658 Owens Drive
Pleasanton, CA 94588
Lender Consent and Subordination. Each and every beneficiary under a deed of
trust encumbering the Property, if any, shall execute a lender consent and
subordination agreement which shall be attached to and recorded with this
agreement and a part of it.
[This space intentionally left blank]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed in duplicate the day and year first above written.
CITY OF PALO ALTO
Assistant City Manager
APPROVED AT TO FORM:
Senior Deputy City Attorney
WESTERN PACIFIC HOUSING, INC.,
A DELAWARE CORPORATION
DBA D.R. HORTON, INC.
Ed Galigher
Vice President
APPROVED AS TO CONTENT:
Director of Planning and
Community Environment Name:
Title:
EXHIBITS:
B.
C.
D.
E.
Legal Description
Description of BMR Units with Sales Prices
Site Plan with Locations of BMR Units
BMR Sales Price Calculations
Procedures for Determination and Payment of BMR In-Lieu
Fees on the Sale of Market Rate Ownership Units
Below Market Rate Ownership Deed Restrictions [Version
dated 8/93]
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF .)
)SS.
COUNTY OF )
On , before me, , a notary
public in and for said County, personally appeared
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument, and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Notary Public
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF )
)SS.
COUNTY OF )
On , before me,., a notary public in
and for said Cou nty,personally appeared
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument, and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Notary Public
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF )
)SS.
COUNTY OF )
On , before me, , a notary public in
and for said County, personally appeared
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument, and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Notary Public
2
Lender Consent and Subordination
, a banking corporation, the beneficiary under that certain
Deed of Trust encumbering the Property, which Deed of Trust was recorded on
, as Instrument No.in the Official Records of
Santa Clara County, hereby subordinates the Deed of Trust to the Agreement between
Western Pacific Housing, Inc. and City of Palo Alto Requiring Provision of Below-Market-
Rate Dwellings and In-Lieu Fee Payments at 4219 El Camino Real, Palo Alto, California.
Any person receiving title to the Property, or any part thereof, by reason of a foreclosure
sale, trustee sale or deed in lieu thereof shall take title subject to the aforementioned
Agreement.
By:
Its:
, a banking corporation
3
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF .)
COUNTY OF )
)SS.
On , before me, , a notary
public in and for said County, personally appeared
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument, and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Notary Public
4
EXHIBIT A
PROPERTY DESCRIPTION
LEGAL DESCRIPTION
Real property in the City of Palo Alto, County of Santa Clara, State of California, described as
follows:
Parcel One:
Portion of Lots 4, 5, 6 and 7, as shown upon that certain Map entitled, "Map of Subdivision of the
Win. Rowe Property", which Map was filed for record in the Office of the Recorder of the County
of Santa Clara, State of California, on April 4, 1894 in Book H of Maps, at page 43, and more
particularly described as follows:
Beginning at an iron pipe set at the point of intersection of the Northeasterly line of the San
Francisco-San Jose Road (State Highway, 100 feet in width), with the Northwesterly line of that
certain 3 acre tract of land described in the Deed from Robert M. Wilke et ux, to V. Melani et ux,
dated July 21, 1925, recorded July 30, 1925 in Book 175 Official Records, page 192, Santa Clara
County Records; running thence North 33° 07’ West along the said Northeasterly line of the San
Francisco-San Jose Road, 551.83 feet to a granite monument; thence on a curve to the right with
a radius of 100 feet through a central angle of 74° 47’ for a distance of 130.52 feet to a granite
monument on the Southeasterly line of Charleston Road, as said Road is shown upon the Map
above referred to; running thence North 41° 40’ East along the said Southeasterly line of
Charleston Road, 110.13 feet to the Westernmost corner of that certain 0.176 acre tract of land
described in the Deed from Robert M. Wilke to Karen O. Abrahamson, dated March 6, 1940,
recorded March 6, 1940 in Book 970 Official Records, page 417, Santa Clara County Records;
running thence South 44° 05’ East along the Southwesterly line of the said 0.176 acre tract,
85.56 feet to an iron pipe at the Southernmost corner thereof, which is also the Southernmost
corner of that certain 0.0132 acre tract of land described in the Deed from Robert H. Wilke to
Karen O. Abrahamson, dated February 21, 1946, recorded March 26, 1946 in Book 1340 of
Official Records, page 386, Santa Clara County Records; running thence North 49° 57’ East along
the Southeasterly line of said 0.0132 acre tract, 89.98 feet to an iron pipe at the Easternmost
corner thereof; thence North 44° 05’ West along the Northeasterly line of said 0.0132 acre tract
and along the Northeasterly line of said 0.176 tract, 98.56 feet to a point on the Southeasterly
line of Charleston Road; running thence North 41° 40’ East along said last named line and its
prolongation Northerly 698.12 feet to the intersection thereof with the center line of Wilkie Way,
40 feet in width, running thence South 33° 20’ East along the said center line of Wilkie Way
699.51 feet to a point distant thereon, North 33° 20’ West 108.79 feet from the Northernmost
corner of that certain 6.00 acre tract of land described in the Deed from William Rowe et ux, to
Nancy I. Maloy, dated March 19, 1902, recorded March 31, 1902 in Book 253 of Deeds, page
318, Santa Clara County Records; running thence South 41° 55’ 35" West and parallel with the
Northwesterly line of said 6.00 acre tract 247.50 feet to a point on the Northeasterly line of the 3
acre tract above referred to; running thence North 33° 20’ West along said last named line 67.21
feet to the Northernmost corner of said 3 acre tract; running thence South 41° 55’ 35" West
along the Northwesterly line of said 3 acre tract, 728.46 feet to the point of beginning.
Excepting therefrom so much thereof as lies within the bounds of Wilkie Way, as described in the
Deed from John H. Richey et al, to County of Santa Clara, dated April 28, 1947, recorded July 2,
1947 in Book 1483 of Official Records, page 209.
Also excepting therefrom that certain portion described in the Deed to City of Palo Alto, recorded
September 27, 1967 in Book 7872, page 466, Official Records and being more particularly
First American 77t/e Insurance Company
described as follows:
EXHIBIT A
PROPERTY DESCRIPTION
Beginning at the point of intersection of the Northeasterly line of El Camino Real (100 feet wide)
with the Northwesterly line of that certain 3 acre parcel of land described in the Deed from
Robert M. Wilkie, et ux, to V. Melani, et ux dated July 21, 1925 and recorded July 30, 1925 in
Book 175, page 192 of Official Records, Record of Santa Clara County, California; thence N. 43°
16’ 16" E. along said Northwesterly line 10.35 feet; thence N. 31° 49’ 19" W., parallel with said
Northeasterly line 67.44 feet to the true point of beginning; thence continuing N. 31° 49’ 19" W.,
448.25 feet; thence Northerly along the arc of a tangent curve to the right, having a radius of
110 feet, through a central angle of 74° 45’ 45" for an arc length of 143.53 feet to a tangent
point; thence N. 42° 56’ 26" E;, parallel with the Southeasterly line of Charleston Road (58 and
70 feet wide) 22.87 feet; thence Southerly along the arc of a tangent curve to the left, having a
radius of 125 feet through a central angle of 74° 45’ 45" for a length of 163.11 feet; thence S.
31° 49’ 19" E., parallel with said Northeasterly line, 200.00 feet; thence S. 29° 11’ 42" E., 240.00
feet to the true point of beginning, being a portion of Lots 4, 5 and 6, Map of Subdivision of the
Wm. Rowe Property, which Map was recorded April 4, 1894 in Book "H", page 43 of Maps,
Records of Santa Clara County, California.
Also excepting therefrom that certain parcel described in the Final Judgment of Condemnation
recorded January 20, 1969 in Book 8407, page 601 Official Records and being more particularly
described as follows:
Beginning at the point of intersection of the Northeasterly line of El Camino Real (100 feet wide)
with the Northwesterly line of that certain 3 acre parcel of land described in the Deed from
Robert M. Wilkie, et ux, to V. Melani, et ux, dated July 21, 1925 and recorded July 30, 1925 in
Book 175, page 192 of Official Records, Records of Santa Clara County, California; thence N. 31°
49’ 19" W. along said Northeasterly line 551.83 feet; thence along the arc of a tangent curve to
the right, having a radius of 100 feet, through a central angle of 48° 55’ 14" for an arc distance
of 85.38 feet to a non-tangent point on the Southeasterly line of Charleston Road (58’ and 70’
wide); thence in a generally Northeasterly direction along said Southwesterly line for the
following courses and distances, N. 42° 56’ 26" E. 110.24 feet; S. 47° 03’ 34" E. 12.00 feet; and
N. 42° 56’ 26" E. 41.84 feet; thence S. 46° 59’ 19" E. 5.01 feet; thence S. 42° 56’ 26" W.,
parallel with said Southeasterly line, 98.46 feet; thence along the arc of a tangent curve to the
left, having a radius of 110 feet, through a central angle of 74° 45’ 45" for an arc distance of
143.53 feet to a tangent point; thence S. 31° 49’ 19" E., parallel with said Northeasterly line,
515.69 feet to a point on said Northwesterly line; thence S. 43° 16’ 16" W. along said
Northwesterly line 10.35 feet to the point of beginning, being a portion of Lots 4, 5 and 6, Map of
the Subdivision of the William Rowe Property, which Map was recorded April 4, 1894 in Book "H",
page 43 of Maps, Records of Santa Clara County, California.
Parcel Two:
Portion of Lot 4, as shown upon that certain Map entitled, "Map of Subdivision of the Win. Rowe
Property", which Map was field for record in the Office of the Recorder of the County of Santa
Clara, State of California on April 4, 1894 in Book H of Maps, at page 43, and more particularly
described as follows:
Beginning at a point on the Northwesterly line of that certain 3 acre tract of land described in the
Deed from Robert M. Wilke, et ux, to V. Melani, et ux, dated July 21, 1925, recorded July 30,
1925 in Book 175 Official Records, page 192, Santa Clara County Records; distant thereon North
41° 55’ 35" East 404.46 feet from the Northeasterly line of San Francisco-San Jose Road (State
First American 77t/e Insurance Company
EXHIBIT A
PROPERTY DESCRIPTION
Highway, 100.00 feet in width); running thence North 41° 55’ 35" East along the Northwesterly
line of said 3 acre tract, 324.00 feet to the Northernmost corner thereof; running thence South
33° 20’ East along the Northeasterly line of said 3 acre tract, to the point distant thereon North
33° 20’ West 108.79 feet from the Easternmost corner thereof; running thence South 41° 55’ 35"
West and parallel with the Northwesterly line of said 3 acre tract, 256.25 feet; thence North 86°
West 82.40 feet to the point of beginning.
Parcel Three:
Portion of Lots 3 and 4, as shown upon that certain Map entitled, "Map of Subdivision of the Wm.
Rowe Property", which Map was filed for record in the Office of the Recorder of the County of
Santa Clara, State of California, on April 4, 1894 in Book H of Maps, page 43, and more
particularly described as follows:
Beginning at the point of intersection of the Southwesterly line of Wilkie Way, as said line was
established by the Deed from John H. Rickey, et al, to County of Santa Clara, dated April 28,
1947 and recorded July 2, 1947 in Book 1483 of Official Records, page 209, Santa Clara County
Records; with the Northwesterly line of that certain 6 acre tract of land described in the Deed
from William Rowe, et ux, to Nancy L. Maloy, dated March 19, 1902 and recorded March 31,
1902 in Book 253 of Deeds, page318; running thence South 41° 55’ 35" West along the
Northwesterly line of said 6 acre tract 226.82 feet to the Easternmost corner of that certain 3
acre tract of land described in the Deed from Robert M. Wilke, et ux, to V. Melani, et ux, dated
July 21, 1925 and recorded July 30, 1925 in Book 175 of Official Records, page 192, Santa Clara
County Records: running thence North 33° 20’ West along the Northeasterly line of said 3 acre
tract 108.79 feet; running thence North 41° 55’ 35" East and parallel with the Northwesterly line
of said 6 acre tract 226.82 feet to a point on the said Southwesterly line of Wilkie Way; running
thence South 33° 20’ East along said last named line 108.79 feet to the point of beginning.
Parcel Four:
Commencing at a point on the original Northeasterly line of the San Francisco and San Jose
Road; distant thereon South 32° 45’ East 627.22 feet from the point of intersection thereof with
the Southeasterly line of Charleston Road, said point of commencement being the most Westerly
corner of that certain 3 acre tract of land described in the Deed from Robert M. Witke, et ux, to
V. Melani, et ux, dated July 21, 1925 and recorded July 30, 1925 in Book 175 of Official Records,
page 192; and also being the most Westerly corner of that certain 0.06 acre parcel of land
conveyed by V. Melani, et ux, to the State of California, by Deed dated October 23, 1929 and
recorded December 30, 1929 in Book 497 of Official Records, page 166; thence along the
Northwesterly line of said 0.06 acre parcel of land North 42° 25’ East 14.67 feet to the most
Northerly corner thereof, which is the true point of beginning of the parcel of land to be
described; thence from said true point of beginning and along the Northwesterly line of said 3
acre tract of land, North 42° 10’ East 404.46 feet to the most Westerly corner of that certain
parcel of land conveyed by V. Melani, et ux, to Rickey’s Studio Inn Hotel, a California Corporation
by Deed dated May 27, 1952 and recorded August 7, 1952 in Book 2465 of Official Records, page
438; thence along the Southwesterly line of said parcel of land so conveyed to Rickey’s Studio
Inn Hotel, South 86~ East 82.40 feet to the most Southerly corner thereof; thence along the
Southeasterly line of said parcel of land so conveyed to Rickey’s Studio Inn Hotel, North 41° 55’
35" East 256.25 feet to the most Easterly corner thereof on the Northeasterly line of said 3 acre
tract of land; thence along said Northeasterly line of said 3 acre tract of land, South 32~ 45’ East
108.79 feet to the most Easterly corner thereof; thence along the Southeasterly line of said 3
acre tract of land, South 42° 10’ West 728.65 feet to the most Easterly corner of said 0.06 acre
parcel of land so conveyed to the State of California; thence along the Northeasterly line of said
First American 77t/e Insurance Company
EXHIBIT A
PROPERTY DESCRIPTION
0.06 acre parcel of land, which is also the present Northeasterly line of San Francisco and San
Jose Road, North 32° 50’ West 176.24 feet to the true point of beginning and being a portion of
Lots 3 and 4 as shown upon the Map of subdivision of the Win. Rowe Property, which was filed
for record in the Office of the Recorder of the County of Santa Clara, State of California, on April
4, 1894 in Book H of Maps, page 43.
Excepting therefrom the portions thereof described in the Final Judgment of Condemnation by
City of Palo Alto recorded on July 11, 1968 in Book 8188 Official Records, page 43 as follows:
Beginning at the point of intersection of the Northeasterly line of El Camino Real (100 feet wide)
with the Northwesterly line of that certain 3 acre parcel of land described in the Deed from
Robert M. Wilke, et ux, to V. Melani, et ux, dated July 21, 1925 and recorded July 30, 1925 in
Book 175, page 192 of Official Records, Records of Santa Clara County, California; thence South
31° 49’ 19" East, along said Northeasterly line 176.24 feet; thence North 43~ 16’ 16" East,
parallel with said Northwesterly line, 10.35 feet; thence North 31~ 49’ 19" West, parallel with said
Northeasterly line 176.24 feet to a point on said Northwesterly line; thence South 43~ 16’ 16"
West, along said Northwesterly line, 10.35 feet to the point of beginning being a portion of Lots 3
and 4, Map of the Subdivision of the William Rowe Property, which Map was recorded April 4,
1894 in Book "H", page 43 of Maps, Records of Santa Clara County, California.
APN: 147-47-035 and 038
ARB: 147-47-35 and 38
First American 77tie Insurance Company
EXHIBIT B
EXHIBIT C
BMR UNIT LOCATIONS
m
CITY OF PALO ALTO
EXHIBIT C
BMR EXHIBIT
SANTA CLARA COUNT~
Date:April 29, 2005
EXHIBIT D
PLANNING DIVISION
Memorandum
To:Planning Division Staff & Housing Developers, and Others
From:Catherine Siegel, Housing Coordinator, Planning Division
Steve Emslie, Director of Planning & Community Environment
Subject:Updated Prices for Ne~v BMR Units - Effective April 1, 2005
Palo Alto has updated its prices for newly constructed housing units for the Below Market
Rate (BMR) home ownership program, as shown below. The attached tables explain the
price calculations. The City updates the BMR prices annually. The new prices are effective
as of April 1, 2005 and apply to BMR units in projects receiving final planning entitlement
approvals during the following year.
Factors updated annually are: the Area Median Income (AMI) for Santa Clara County, as
published by the State Department of Housing & Community Development, interest and
mortgage insurance rates for loans typically used by BMR buyers and other home
ownership costs (covered by allowances for repairs and maintenance, typical homeowner
association dues, and fire insurance).
The developer is required to sell new BMR units at the "BMR Unit Price". The required
BMR price is the midpoint price affordable by assumed households in the target income
range for that unit type. BMR units must also comply with the Ciw’s "Standards for BMR
Units". As described in the BMR Program H-36 of the Housing Element, as adopted in
December 2002, there are two levels of affordability for BMR ownership units, as shown
below:
Studio Units
1-bedroom units
2-bedroom units
3-bedroom units
4-bedroom units
Lower Moderate Income
80%to 100%AMI Units
$175,100
$208,600
$242,250
$275,850
$302,750
Higher Moderate Income
100%to 120%AMI Units
$227,300
$268,450
$309,500
$350,550
$383,450
Attachments:
1) Price Calculations for Lower Moderate Income Units (80% to 100% of AMI)
2) Price Calculations for Higher Moderate Income Units (100% to 120% of AMI)
CADocuments and Settings\csiegel\Local Settings\Temporary Internet Files\OLK19~BMR Price Exh D Cover Memo 4-05.doc
Persons In
Household
1
2
3
4
5
EXHIBIT D
City of Palo Alto BMR Ownership Program
Prices for New BMR Units
for Households at 80% to 100% of Median Income
80% of County
Area Median
Income
$59,100
$67,50O
$75,950
$84,400
$91,150
Revised April 2005
100% of County
Area Median
Income
Range of Affordable Prices at 80% to 100% of
Median Income
$73,850
$84,400
$94,950
$105,500
$113,950
$149,000 $201,200
$178,700 $238,500
$208,600 $275,900
$238,500 $313,200
$262,400 $343,100
Assumed Household Size
for Unit Type U nit Type
1 Studio
2 1 Bedroom
3 2 Bedrooms
4 3 Bedrooms
5 4 Bedrooms
BMR Unit Price
(Assumes 90% of Area Median Income & Midpoint Price
Assumed Household Size for the Unit Type)
$175,100
$208,600
$242,250
$275,850
$302,750
VARIABLES AND ASSUMPTIONS:
Area Median Income: 4-person household (As of 2/25/05)
Annualized Rates:
Interest Rates (As of 4/1/05)
Mortgage Insurance (As of 4/1/05)
Property Taxes
Total Effective Interest Rate
Number of Monthly Payments:
Loan-To-Value (5% downpayment):
Allowance for: HOA Association Dues; Repairs & Maintenance
Costs, & Fire Insurance (Per Month)
Loan Terms:
Zero (0) Loan Points
30 Year, Fixed Rate, Fully Amortized Loan
Maximum of 30% of Gross Income for All Housing Costs (mortgage, private mortgage insurance,
property taxes, HOA dues, repairs & maintenance allowance, fire insurance)
$105,500
6.00%
0.89%
1.25%
8.14%
360
95%
$425
H:\Sheet~BMR Exh D 4-2005 Sales Prices at 80-100
EXHIBIT
City of Palo Alto BMR Ownership Program
Prices for New BMR Units
Persons In
Household
1
2
for Households at 100% to 120% of Median Income
Revised April 2005
100% of
County Area
Median Income
$73,850
$84,400
$94,950
$105,500
$113,950
120% of County
Area Median
Income
$88,600
$101,300
$113,950
$126,600
$136,750
Range of Affordable Prices at 100% to 120%
of Median Income
$201,200 -$253,400
$238,500 -$298,400
$275,900 -$343,100
$313,200 -$387,900
$343,100 -$423,800
Assumed Household Size for
Unit Type Unit Type
1 Studio
2 1 Bedroom
3 2 Bedrooms
4 3 Bedrooms
5 4 Bedrooms
BMR Unit Price
(Assumes 110% of Area Median Income & Midpoint
Price for Assumed Household Size for the Unit Type)
$227,300
$268,450
$309,500
$350,550
$383,450
VARIABLES AND ASSUMPTIONS:
Area Median Income: 4-person household (As of 2/25/05)
Annualized Rates:
Interest Rates (As of 4/1/05)
Mortgage Insurance (As of 4/1/05)
Property Taxes
Total Effective Interest Rate
Number of Monthly Payments:
Loan-To-Value (5% downpayment):
Allowance for: HOA Association Dues; Repairs & Maintenance
Costs, & Fire Insurance (Per Month)
Loan Terms:
Zero (0) Loan Points
30 Year, Fixed Rate, Fully Amortized Loan
Maximum of 30% of Gross Income for All Housing Costs (mortgage, private mortgage insurance,
property taxes, HOA dues, repairs & maintenance allowance & fire insurance)
$105,500
6.00%
0.89%
1.25%
8.14%
360
95%
$425
H:\Sheet\BMR Exh D 4-2005 Sales Pdces at 100 -120
EXHIBIT E BMR Program Policy and Procedures
2005:01
Date: May 18, 2005
Page 1 of 1
Procedures for Determination & Payment of BMR In-lieu Fees on the Sale
of Market Rate Ownership Units
Calculation of BMR In-Lieu Fees
If the BMR Agreement requires the Developer to pay the City a BMR in-lieu fee on the sale of
market rate housing units, the fee amount for each market rate unit is equal to the applicable in-
lieu fee rate, as specified in the BMR Agreement, times the hi~her of the market value (as a
for-sale ownership unit) or the actual sales price of each market rate unit in the Prqiect. The
Escrow Agent shall calculate the actual in-lieu fee just prior to the sale closing. The Escrow
Agent shall include in the sales price all improvements, add-ons, options, fixtures, appliances,
landscaping, equipment, furniture and other items that the buyer purchases from the Developer,
or the Developer’s contractors, prior to close of escrow and transfer of title to the unit to the
buyer. Developer shall inform the Escrow-Agent of the prices for such items, even if the items
will not be paid for through the escrow- transaction, so that the Escrow Agent can correctly
calculate the BMR in-lieu fee due to the City. The City reserves the right to require an
appraisal of any unit to confirm its fair market value. The Developer shall reimburse the City
for the cost of any such appraisals.
Process for Units Not Sold on Open Market Basis
Should any units be sold at less than fair market value or sold, transferred or exchanged to a
person or entity related to the Developer, the original land owner or an investor in the Project
or should Developer retain any units for personal use or rental, then Developer shall pay the
City an in-lieu fee for each such unit based on the fair market value of each unit as if each unit
were being sold separately on the open market as an ownership housing unit. An appraiser
selected by the City shall determine the fair market value of each unit. The Developer shall
reimburse the City for the cost of any such appraisals. The BMR Agreement may include a
deadline by which all in-lieu fees are due and payable to the City even if all units have not yet
been sold.
Timing & Process for In-Lieu Fee Payments
For each unit subject to the fee, the full in-lieu fee payment is due and payable to the City at
the close of escrow for the first sale (or other transfer of title) by the Developer of that unit.
The fee shall be deducted by the Escrow-Agent from the Developer’s (seller’s) sales proceeds
at escrow closing and immediately transmitted to the City per instructions to be provided by
the City at that time. The Escrow Agent shall provide the City with the following
documentation together with the check for the fee payment for each unit to verify the
calculation of the fee:
1.A certified HUD-1 form for each unit’s sale
2.A list of any improvements and their prices, if not showx~ on the HUD- I form
3.A calculation of the amount of the in-lieu fee
Security for In-Lieu Fee Payments
The City may require a bond from the Developer or that a note and deed of trust be recorded
against the Project in favor of the City as security for the payment of BMR in-lieu fees.
C:~Documents and Settings\csiegel\Local Settings\Temporar3~ Internet Files\OLK19k2005-01 In Lieu Fee Procs on For Sale Units.doc
EXHIBIT F
City of Palo Alto Below Market Rate (BMR) Program Deed Restrictions (August 1993)
SUBJECT TO:
A.Right of First Refusa!.
Grantee hereby grants and gives to the City of Palo Alto ("City") a right to purchase the real property
conveyed hereby and any improvements thereon (the "Premises") under conditions hereinafter set forth. City
may designate a governmental or nonprofit organization to exercise its right of first refusal. City or its
designee may assign this right to an individual private buyer who meets the City’s eligibilit?~ qualifications.
After the exercise of said right by City’, its designee or assignee in the manner hereinafter prescribed, City, its
designee or assignee may assign said right to purchase to any substitute individual private buyer who meets
the City’s eligibility requirements and is approved by the City; provided, however, that such subsequent
assignment shall not extend any time limits contained herein. Any attempt to transfer title or any interest
therein in violation of these covenants shall be void.
B.Procedure on Sale.
Whenever the Owner ("Owner" refers to Grantee and all successors in interest) of said Premises no
longer desires to own said Premises, owner shall notify City in writing to that effect. Such notice shall be
personally delivered or deposited in the United States mail, postage prepaid, first class, certified, addressed to
City Manager, City of Palo Alto, 250 Hamilton Avenue, Palo Alto, CA 94301, with a copy to the Palo Alto
Housing Corporation, 725 Alma Street, Palo Alto, CA 94301-2403. City, its designee or assignee shall then
have the right to exercise its right to purchase said Premises by delivery of written notice, by personal
delivery or certified mail, to the Owner thereof at any time within sixty (60) days from the receipt by City of
such written notice from Owner of intent to sell or dispose of the Premises.
If the City, its designee or assignee exercises its right to purchase said Premises, close of escrow- of said
purchase shall be within ninety (90) days of the opening of such escrow by either party. Said escrow shall be
opened upon delivery to Owner of written notice of the exercise of the option or as soon thereafter as
possible. In the event City decides to assign the right to purchase provided herein, City may postpone
opening of escrow until selection of such assignee, or as soon thereafter as possible, provided that the
opening of the escrow shall not be postponed longer that ninety (90) days after the Owner is notified of the
City’s exercise of its right to purchase.
Closing costs and title insurance shall be paid pursuant to the custom and practice in the City of Palo
Alto at the time of the opening of such escrow. Seller shall bear the expense of providing a current written
report of an inspection by a licensed Structural Pest Control Operator. All work recommended in said report
to repair damage caused by infestation or infection of wood-destroying pests or organisms found and all work
to correct conditions that caused such infestation or infection shall be done at the expense of the Seller. Any
work to correct conditions usually deemed likely to lead to infestation or infection of wood-destroying pests
or organisms, but where no evidence of infestation or infection is found with respect to such conditions, is
not the responsibility of the Seller, and such work shall be done only if requested by the Buyer and then at the
(Rev. 8/93)1 Reg.
EXHIBIT F
expense of the Buyer. The Buyer shall be responsible for payment of any prepa3q-nent fees imposed by any
lender by reason of the sale of the premises. The purchase price shall be paid in cash at the close of escrow
or as may be otherwise provided by mutual a~eement of Buyer and Seller. The purchase price of the
Premises shall be fixed at the lower amount arrived at via the following two methods:
City or its designee shall have an appraisal made by an appraiser of its choice to establish the market
value. The owner may also have an appraisal made by an appraiser of Owner’s choice to establishthe
market value. If agreement cannot be reached, the average of the two appraisals shall be termed the
market price.
Dollars ($) XXXXXXXXXNXN
plus the amount of any prepasqnent fees paid by the selling Owner at the time said Owner purchased the
Premises (base price), plus an amount, if any, to compensate for any increase in the cost of living as
measured by one-third (1/3) of the Consumer Price Index, All Urban Consumers, for the San Francisco-
Oakland-San Jose area published by the U.S. Department of Labor, Bureau of Labor Statistics
(hereinafter "the Index"). For that purpose, the Index prevailing on the date of the purchase by the
selling Owner of said Premises shall be compared with the latest Index available on the date of receipt
by City of notice of intent to sell. The percentage increase in the Index, if any, shall be computed and
the base price shall be increased by one-third (1/3) of that percentage; provided, however, that the price
shall in no event be lower than the purchase price paid by the selling Ow-ner when he purchased the
Premises. This adjusted price shall be increased by the value of any substantial structural or permanent
fixed improvements which cannot be removed without substantial damage to the Premises or
substantial or total loss of value of said improvements and by the value of any appliances, fixtures, or
equipment purchased to replace appliances, fixtures, or equipment which were originally acquired as
part of the Premises by Owner; provided that such price adjustment for replacement appliances,
fixtures, or equipment shall be allowed only when the expenditure is necessitated by the non-operative
or other deteriorated condition of the original appliance, fixture, or equipment. If at the time of
replacement the original appliance, fixture, or equipment had in excess of twenty percent (20%) of its
original estimated useful life remaining, Owner shall document to the City’s satisfaction the condition
of the appliance, fixture, or equipment which necessitated its replacement. No such price adjustment
shall be made significantly in excess of the reasonable cost to replace the original appliance, fixture, or
equipment with a new appliance, fixture, or equipment of comparable quality as hereinafter provided.
No such adjustment shall be made except for improvements, appliances, fixtures, or equipment made or
installed by the selling Owner. No improvements, appliance, fixture, or equipment shall be deemed
substantial unless the actual initial cost thereof to the Owner exceeds one percent (1.0%) of the
purchase price paid by the Owner for the Premises; provided that this minimum limitation shall not
apply in either of the following situations:
(a)Where the expenditure was made pursuant to a mandatory assessment levied by the Homeowners’
association for the development in which the Premises is located, whether levied for
improvements or maintenance to the Premises, the common area, or related purposes.
(b) Where the expenditure was made for the replacement of appliances, fixtures, or equipment which
were originally acquired as part of the Premises by Owner.
(Rev. 8/93)2 Reg.
EXHIBIT F
No adjustment shall be made for the value of any improvements, appliances, fixtures, or equipment unless
the Owner shall present to the City valid v~itten documentation of the cost of said improvements. The value
of such improvements by which the sale price shall be adjusted shall be determined as follows:
(a)The value of any improvement, appliance, fixture, or equipment, the original cost of which was less
than Five Thousand Dollars ($5,000), shall be the depreciated value of the improvement, appliance,
fixture or equipment calculated in accordance with principles of straight-line depreciation applied to
the original cost of the improvement, appliance, fixture or equipment based upon the estimated
original useful life of the improvement, appliance, fixture or equipment.
(b)The value of any improvement, appliance, fixture, or equipment, the origina! cost of which was Five
Thousand Dollars ($5,000) or more, shall be the appraised market value of the improvement,
appliance, fixture or equipment when considered as an addition or fixture to the premises (i.e., the
amount by which said improvement, appliance, fixture or equipment enhances the market value of the
premises) at the time of sale. Said value shall be determined in the same manner as the market value
of the premises in method 1 above.
(c)On January 1, 1982, and every two years thereafter, regardless of the date of execution or recordation
hereof, the amount of Five Thousand Dollars ($5,000) referred to in paragraphs (a) and (b)
immediately above shall be automatically adjusted for the purpose of those paragraphs in the
following manner. On each adjustment date, the Consumer Price Index, All Urban Consumers, for
the San Francisco-Oakland area published by the U.S. Department of Labor, Bureau of Labor
Statistics ("Index") prevailing on January !, 1980, shall be compared with the Index prevailing on the
date of recordation of this deed. The percentage increase in the Index, if any, shall be computed and
the sum of Five Thousand Dollars ($5,000) shall be increased in the same percentage. In no event
shall the sum be reduced below Five Thousand Dollars ($5,000).
(d)No price adjustment wilt be made except upon presentation to City of written documentation of all
expenditures made by Owner for which an adjustment is requested.
Any sale price determined through the use of this method number 2 (base price adjusted by Consumer
Price Index and value of improvements, appliances, fixtures or equipment added) shall be adjusted by
decreasing said price by an amount to compensate for deferred maintenance costs, which amount
shall be determined as follows: Upon receipt of notice of Owner’s intent to sell, City or its designee
shall be entitled to inspect the Premises. City or its designee shall have an opportunity to determine
whether all plumbing, electrical, and heating systems are in working order; whether any violations of
applicable building, plumbing, electric, fire, or housing codes exist; whether all appliances which
were originally furnished to Owner as part of the Premises, or any replacements thereof, are in
working order; whether walls, ceilings and floors are clear and free of holes or other defects (except
for holes typical of picture hangers); whether doors, windows, screens and similar appurtenances are
cracked, broken or torn; and whether carpets, drapes and similar features which were originally
furnished to Owner as part of the premises, or any replacement thereof, are clean and free of holes,
tears or other defects. In the event deficiencies are noted, the Real Property Administrator of City
(Rev. 8193)3 Reg.
EXHIBIT F
shall obtain estimates to cure the observed deficiencies. The Owner shall cure the deficiencies in a
reasonable manner acceptable to City or designee within sixty (60) days of being notified of the
results of the inspection, but in no event later than close of escrow-. Should owner fail to cure such
deficiencies prior to the scheduled date of close of escrow, at the option of City, its designee or
assignee, escrow may be closed, title passed and money paid to the selling Owner subject to the
condition that such funds as are necessary to pay for curing such deficiencies (based upon "~ritten
estimates obtained by City) shall be withheld from the money due the selling Owner and held by the
escrow holder for the purpose of curing such deficiencies. City, its designee or assi~ee shall cause
such deficiencies to be cured and upon certification of completion of work by City, escrow holder
shall utilize such funds to pay for said work. Any remaining funds shall be paid to the selling Owner.
No other payment shall be due said Owner.
In no event shall City become in any way liable to Owner or any potential or actual Buyer of the
Premises in connection with any sale or other conveyance of the Premises. Nor shall City become obligated
in any manner to Owner or any potential or actual Buyer by reason of the assignment of City’s right to
purchase. Nor shall City be in any way obligated or liable to Owner or any potential or actual Buyer for any
failure of City’s assignee to consummate a purchase of the Premises or to comply with the terms of any
purchase and sale agreement.
Until such time as the City’s right to purchase is exercised, waived, or expired, the Premises and any
interest in title thereto shall not be sold, conveyed, leased, rented, assigned, encumbered or otherwise
transferred to any person or entity except with the prior express written consent of City or its designee, which
consent shall be consistent with Ci~’s goal of creating, preserving, maintaining, and protecting housing in
Pato Alto for persons of low and moderate income. Any encumbering of title of the Premises in connection
with securing any financing or loan may only be accomplished with City’s prior express written consent;
however, in the event of foreclosure or transfer by deed in lieu of foreclosure, the provisions of Section D of
this instrument shall govern.
The following transfers of title or any interest therein are not subject to the right of first refusal
provisions of this deed: transfer by gift, devise, or inheritance to grantee’s spouse or issue; taking of title by
surviving joint tenant; transfer of title to spouse as part of divorce or dissolution proceedings; acquisition of
title or interest therein in conjunction with marriage; provided, however, that these covenants shall continue
to run with the title to said Premises following said transfers.
C.Termination of Right of First Refusal.
The provisions set forth in this deed relating to City’s right to purchase shall terminate and become void
automatically fifty-nine (59) years following the date of recordation of this deed.
Upon the expiration of said fifty-nine (59) year period, the Palo Alto Housing Corporation, a non-profit
charitable organization or its successor organization, shall have the right to purchase the Premises, and if
Owner no longer desires to own the premises, Owner shall notify the Palo Alto Housing Corporation in
accordance with the procedures for notifying the City in Paragraph B above. If the Palo Alto Housing
(Rev. 8/93)4 Reg.
EXHIBIT F
Corporation elects to exercise its right to purchase, it shall do so in accordance with the procedures and price
set forth for the City in Paragraph B above.
D. Default.
Owner covenants to cause to be filed for record in the Office of the Recorder of the County of Santa
Clara a request for a copy of any notice of default and of any notice of sale under any deed of trust or
mortgage with power of sale encumbering said Premises pursuant to Section 2924 (b) of the Civil Code of
the Sate of California. Such request shall specify that any such notice shall be mailed to the City Manager,
City of Palo Alto, 250 Hamilton Avenue, Palo Alto, CA 94301. Any notice of sale given pursuant to Civil
Code Section 2924 (f) shall constitute a notice of intent to sell hereunder and City or its designee or assignee
may exercise its preemptive right prior to any trustee’s sale, judicial foreclosure sale, or transfer by deed in
lieu of foreclosure, provided, however, notwithstanding any language contained in this instrument to the
contrary regarding the rights of the lien holder, the City, or its designee or assignee, must complete such
purchase no later than the end of the period established by California Civil Code Section 2924 ( c ) for
reinstatement of a monetary default under the deed of trust or mortgage.
In the event of default and foreclosure, the City, or its designee or assignee, shall have the same right as
the Owner to cure defaults and redeem the Premises prior to foreclosure sale. Such redemption shall be
subject to the same fees, charges and penalties as would otherwise be assessed against the Owner. Nothing
herein shall be construed to create any obligation on the part of the City to cure any such default, nor shall
this right to cure and redeem operate to extend any time limitations in the default provisions of the
underlying deed of trust or mortgage. The City, or its designee or assignee, shall be entitled to recover from
Owner all costs incurred in curing any such default.
In the event City elects not to exercise its right to purchase upon default, any surplus to which Owner
may be entitled pursuant to Code of Civil Procedure Section 727 shall be paid as follows: That portion of
surplus (after payment of encumbrances), if any, up to but not exceeding the net amount that Owner would
have received after payment of encumbrances under the formula set forth above had City exercised its right
to purchase the property on the date of the foreclosure sale, shall be paid to Owner on the date of the
foreclosure sale; the balance of surplus, if any, shall be paid to the City. for increasing the City’s low-income
and moderate-income housing stock.
E.Distribution of Insurance and Condemnation Proceeds.
In the event that the Premises are destroyed and insurance proceeds are distributed to Owx~er instead of
being used to rebuild, or in the event of condemnation, if proceeds thereof are distributed to Owner, or in the
case of a condominium project, in the event of liquidation of the homeowners’ association and distribution of
the assets of the association to the members thereof., including Owner, any surplus of proceeds so distributed
remaining after payment of encumbrances of said Premises shall be distributed as follows: That portion of
the surplus up to but not to exceed the net amount that Owner would have received under the formula set
forth above had City exercised its right to purchase the property on the date of the destruction, condemnation
valuation date, or liquidation, shall be distributed to Owner, and the balance of such surplus, if any, shall be
distributed to the Palo Alto Housing Corporation or its successors or assigns.
(Rev. 8/93)5 Reg.
EXHIBIT F
All notices required herein shall be sent to the following addresses:
CITY:City Manager
City of Palo Alto
250 Hamilton Avenue
Palo Alto, CA 94301
PALO ALTO HOUSING CORPORATION:
OWNER:
725 Alma Street,
Palo Alto, CA 94301-2403
By acceptance of this deed, Grantee/Owmer accepts and agrees to be bound by the covenants contained
herein, and further acknowledges receipt of and agees to be bound by the provisions of these deed
restrictions.
IN WITNESS WHEREOF, the undersigned Grantee has caused this instrument to be executed this
day of .20
Signature of Grantee Signature of Grantee
Print Name Print Name
Signature of Grantee Signature of Grantee
Prim Name Print Name
(Rev. 8/93)6 Reg.
EXHIBIT F
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code Sec. 1189)
STATE OF
COUNTY OF
)
On . before me, ,
a notary public in and for said Count5.,, personally appeared
personally ~known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the
same in his/her!their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
(Rev. 8/93)7 Reg.