2010-10-05 6-B and Joint 2-A Settlement AgreementSir 1 MN 1 MN 1 AND M 1 UAL RELEASE
This settlement agreement c menV' is entered into as of October 5, 2010
("Effective Date"), by and among FRANCIS AND CATHERINE COLLINS ("Collins"), the
CITY OF ALAME A ("City"), the CITY COUNCIL of THE CITY OF ALAMED A,
("Council"), and the CITY of ALAMEDA COMMUNITY E\4PR VEME T COMMISSION
Collectively, the City, the Council, and the CIC are referred to herein as "the City
Panties." Collins and the City Parties are referred to herein as "Parties."
RECITALS
A. Collins is the sole owner of approximately a 9.4-acre property within the
City located at the street address of 2229 -2235 Clement Avenue, Assessor's Parcel Numbers
071-0289-005-00 and 071-0290-001 (the `Property which Collins seeps to develop with
residential housing,
B. on February 13, 2007, Collins filed Collins y. City of Alameda Alameda
County Superior Court Case No. RG0 to ("Coflins-2" a petition for writ of .mandate and
complaint for injunctive and declaratory relief that seeps, among other things, to require the City
to take various actions with respect to the zoning for the Property, Collins -2 is the second of
three lawsuits that Collins filed against the City and the Council in Alameda County Superior
Court in 2006 and 2007 regarding his plans to develop the Property. The other two lawsuits are:
Collins v. City of Alameda Alameda County Superior Court Case loo. R 0627 9 ("Collins-
I") and Collins v. City of Alameda Alameda County Superior Court Case No. RG07319891
C 'Collins-Y'). Collins -1, Collins -2, and Collins-3 are collectively referred to herein as
"Plaintiff 's Lawsuits," Plaintiff's Lawsuits have been dismissed in their entirety.
In March Zoo Collins submitted a new application, for a Major Design
Review, Planned Development Peri and Rezoning of the Property to authorize development
of the 242 -unit Alameda Boatworks Project Proposed Project"'),
D. Since 2008, the Parties have been engaged in settlement discussions that
have msulted in agreement on the scope of a proposed alternative development project ("the
Reduced Density Alternative" A conceptual site plan "Site Plan" for the Reduced Density
Alternative is attached hereto as Exhibit 1.
E. on June 9, 201 the City published the Final Environmental Impact
Report CEIR") for the Proposed Project pursuant to the Galifornia Environmental Quality Act
CeFQA"), Public Resources Code section 2 et sect. The EIR analyzed and evaluated the
potentially significant impacts of the Proposed Project and of several alternatives, including the
Reduced Density Alternative.
F. On June 21, 2010, the City of Alameda Planning Board ("Plannin
Board") adopted Resolution Nos, P -10-04, PB- 10-05, P 10-06 and Pi 10-07, r coy mending
that the Council certify the EIR and approve a goneral plan amendment "C PA" and rezoning
("Rezone"') the Property consistent with the Reduced Density Alternative and endorsing the
Reduced Density A1tcrnativc.
G. On Jul 15, 2010, the Planning Board adopted Resolution No. 10 -1 City Council
p Regarding
Page I of 16 Public Hearin
Agenda Item #6-B
10-05-10
denying the Proposed Project. On July 22, 2010, Collins appealed that denial to the Council
"the Appeal").
H. On September 2 8, 20 10, Colli ns submitted applications to the City for the
approval of a Tentative Subdivision Map and Density Bonus "Reduced Density Applications")
for the Reduced Density Alternative.
1. on October 5, 2010, the Council certified the EIR, adopted the GPA and
the Rezone, and denied the Appeal.
J. The Parties now desire to resolve all disputes that exist among them
relating to the foregoing recitals or the subject of this Agreement.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties hereby stipulate and agree as follows:
ARTICLE 1: PURPOSE of AGREE ME T AND COMPONENTS OF THE
.EDUCED DENSITY ALTERNATIVE
1,1 Purpose of Agreement: The purpose of this Agreement is to clarify the
process and parameters that will govern the City Parties' consideration and possible approval of
the Reduced Density Applications and to establish certain of the Parties' respective obligations
with respect to the Reduced Density Alternative In the event that the City Parties approve it.
1.2 Reduced. Density Alternative: The Reduced Density Alternative shall
include the following components "the Reduced Density Alternative Components"), as
further defined elsewhere in this Agreement;
1,2.1 Site Plan: A site plan and layout consistent: with the Site Plan,
including the "Planning Board Clarifications and Conditions," attached hereto as Exhibit 1,
1.2.2 Maximum Number of Housing Units and Maximum Square,
Footage: No more than one hundred and eighty -two 1 housing units ("Maximum m Nu ber
of Dousing Units"). Each individual dwelling, as defined by Alameda Municipal Codc
"AMC" Section 30-2(b), shall constitute a Housing Unit for the purposes of this Agreement.
The total combined floor area, in luding garages, of all market rate single family homes shall not
exceed fours hund and seven thousand (407,000) square feet,
(a) The Maximum Number of Housing Units shall include no
iinore than one hundred and forty 140) base units ("Base Units") and no more than forty -tiro
(42) density bonus units ("Density Bonus Units"). The Parties recognize that, in order to achieve
tho Maxie num Number of Horsing Units and pursuant to the City's I emsty Bonus Ordinance
("Density Bonus O rdi nee" AMC Section 30-17, Collins has requested in his Density 1 onvis
Application that the City waive the following two de elopmont standards i AMC Section 30-
53,2's prohibition on building perinits for "Multiple Housing Units and (ii) AMC Section 30-
4.2's 2,000 square Foot minimum lot size for the R -2 Zoning District. The Parties further
recognize that, in processing this request, the City Parties must comply with the State Density
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Bonus Law, Gov't Code section 65915.
(b) A of thirteen 13 Housing Knits (which is nine
percent of the rna irnurn number of possible Base Units) shall be restricted for occupancy by
"Very Low-Income e Households" and a minimum of eight Housing Units (which is six
percent of the maximum number of possible Base Units) shall be restricted for occupancy by
"Moderate- Income Households" {collectively, "the Affordable Housing Units' The Parties
recognize that the Affordable Housing Units are intended to satisfy the CI C's fifteen percent
(15%) inclusionary housing requirements established under CIC Resolution Nos. 09 -163 and
I 27 ("Inclusionary Housing Requirements"). Dental Affordable Housing Units shall be rented
to income eligible households at rental rates no greater than that considered as affordable rent for
Very Low Income Households or Moderate Income Households, as applicable, adjusted for
family size appropriate to the unit, pursuant to California Health and Safety Code Section 50053,
For -sale Affordable Housing Units shall be sold to income eligible households at an "Affordable
Housing Cost" as defined in Health and Safety Code Section 50052.5. The CIC will initiate any
necessary resolutions to allow for the distribution of the affordable units as proposed by Collins.
1.2,3 Open Space: A minimum of approximately two 2 acres of
publicly accessible open space "Open Space" in approximately the same locations as shown on
the Site Ilan. Lands that, as of the Effective Date, are owned by the U.S. Array Corps of
Engineers ("Corps") and are not submerged may be included within this two-acre minirnum,
provided that i all Open Space is actually constructed and maintained in accordance with the
requirements set forth in Article 2, belo w, and (ii) within five 5 years from the Effective Date,
either a the City tales ownership of orb Collins obtains a real estate license from the Corps
that would alloy for development of such Corps" lands as public open space.
ARTICLE 2: COLLINS' OBLIGATIONS
2.1 Diligent Pursuit of Approvals for the Reduced Density Alternative;
Collins shall diligently pursue, all governmental approvals necessary to develop the Reduced
]density Alternative, including the Reduced Density Applications, any further permits or
approvals required under the City Parties' laws and regulations, including the City of Alameda
Standard Plans and City of Alameda Standard Subdivision Spec il #icatlons and Design Criteria,
and any permits or approvals required by other governmental agencies. To the extent that the
City Parties require additional information from Collins to process the Reduced Density
Applications, Collins shall provide that information in a timoly manner. At the request of
Collins, the City shall consider incorporating those terms of this Agreement that are within the
City's authority and jurisdiction into a development agreement.
2.2 Development of Reduced Density Alternative: Provided that the City
Parties approve the Reduced Density Applications by the "Final Action Date," as defined in
Section 3.1.4, below, Collins shall develop the Reduced Density Alternative consistent with the
Deduced Density Alternative Components and as specified in the r Y-nai nder of this Article 2:
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2.2.1 Hazardous Material Remediati n: Prior to approval of the first
final subdivision map ("First r4nal Map" for the Property or any portion of the Property
covered by the First Final Map, Collins shall obtain written confirmation from the California
epartrnent of 'T oxic Substances Control "DTSC" and from any other non -City envir nrncntal
regulatory agency with jurisdiction over hazardous materials on the Property, that rernediati n of
the Property or applicable portion thereof) has been completed and that the Property r portion
thereof) is protective of human health and safety and the environment for the residential and open
space uses indicated on the Site Plan. If the First Final Map is only for a portion of the Property,
then the same requirements as set forth in the preceding sentence shall apply for any subsequent
initial final snap for any remaining portion(s) of the Property.
2.2,2 open Space: Prior to issuance of the building penult for the one
hundred and first (101st) market-rate Housing Unit or within forty months of the issuance
of the final inspection for the first Housing Unit, whichever occurs first, Collins, at his sole
expense, shall:
a) Complete construction and development of all open Space;
b) Provide the City with, and dedicate to the City, a permanent
public access easement to all Open Space. This public access easement shall. i allow unlimited
public access between the hours of dawn to dusk, subject to the rules of the Alameda Recreation
and Park Department rtment "Par Rules" set forth in the attached Exhibit 2 and as those Park Rules
may be amended in the future, provided that any such amendments are generally applicable to
other similar open space areas in the City; and (ii) substantially conform to the form f public
access easement attached hereto as Exhibit 3. Collins shall have no obligation to provide
security personnel or otherwise police the parr;
(c) Establish a mechanism to ensure maintenance of the Open
Space in perpetuity by the Property owners at no expense to the City ("Maintenance Finance
Mechanism"). To meet this requirement, Collins shall en ure that Covenants, Conditions and
Restrictions "C 's" acceptable to all Parties, am recorded for the Homeowners Association
CHOA") for the Property that include sufficient and irrevocably dedicated Open Space dues to
fund the maintenance of all Open Space and associated improvements, including, but not limited
to, seawalls, doors, decks, structures, and landscaping. The CC &R's shall include a provision,
acceptable to all Parties, requiring that the dedicated Open Space dues cannot be reduced and that
if the Il i. is dissolved or sufficient funds are otherwise not available frorn dues to fund the
Maintenance Finance Mechanism, the individual homeowners will not object to the City placing
a lien on their properties to Fund the Maintenance Finance Mechanism. The Maintenance
Financc Wchanism shall also fund a replacement reserve for existing seawalls, consistent with
standard engineering and asset management practices, The Maintenance Finance Mechanism
ball be established, and the CC&R" s shall be recorded, prier to the recordation of the First Final
14 p for the Property or any portion thereof.
(d) Collins including his successor(s)) may contract with a
private entity to maintain the Open Space, provided, however, that Collins shall first enter into a
written agreement with the City ("Maintenance agreement" pursuant to hich he: i obtains
the City's prior; approval for minimum applicable maintenance standards consistent with the
City's maintenance of others municipal. parks; h agrees to hold Harmless, indemnify, and defend
the City Parties, and. their respecfivee officers, directors, governing members, employees,
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contractors, attorneys, and agents, rand their successors and assigns, and each of tbem, from and
against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims,
demands, or judgments, including without limitation, reasonable attorneys fees, arising from or
in any way connected with injury to or the death of any person or physical damage to any
property, resulting from any act, omission, condition or other matter related to or occurring on or
about the Open Space as a result of the design, construction, or maintenance of the open Space,
unless due to the sole negligence or willful misconduct of any of the City Parties; and (iii)
maintains insurance in an ainount not less than the standard insurance coverage "Standard
Insurance Coverage" that the City requires for its contractors to cover any such injury, death,
or damages. The City's current Standard Insurance Coverage requirements are set forth in
Exhibit 4. The Parties recognize that the amount of the Standard Insurance Coverage
requirements may increase over time. If the Parties are unable to reach agreement on the terms of
the Maintenance Agreement, they. the City shall maintain the open Space with funding provided
by the Maintenance Finance Mechanism,
2,2.3 Affordable Housing: Prior to issuance of the building permit for
the one hundred and first (101st) inar et -rate Hoasing Unit, Collins shall construct and secure
final inspection for all Affordable Housing Units.
(a) The Affordable Housing Units shall be constructed
pursuant to, and subject to the terms of, the IC's Inclusionary Dousing Requiremcents.
b) The Affordable Housing Units, which may be either; rental
or fog* sale, may be located in one or more multi family buildings. Affordable requirements
applicable to rental Affordable Housing Units shall be set forth in an Affordable Rental Mousing
Agreement substantially in the form attached hereto as Exhibit affordability requirements
applicable to for -sale Affordable Housing Units shall be set forth in an Affordable For -Sale
Housing Agreement substantially in the form attached hereto as Exhibit 6.
2.2.4 EIR Mitigations and on -Site Improvements: Collins shall fund
and construct all on -site improvements and mitigation measures that are: i identified for the
Reduced Density Alternative in the Mit1g ation Monitoring and Reporting Program "1 MRP'l
for the E1 or (ii.) reasonably required by any governmental entity with jurisdiction over the site.
A copy of the MM RP is attached hereto as Exhibit 7. Collins reserves the right to propose
substitute mitigation measures at a future elate, pursuant to CEQA, for the City to consider for
possible adoption.
2.2.5 Off -Site Improvemeiits and EIR Mitigation: Except as specified
iii Section 3.4, below, Collins shall fund and construct those irnprovcmeats and mitigation
measures required in the 1 MRP or by any governmental entity. Such improvements shall
include, but not be limited to, resurfacing half the width i.e., from the centerline to the edge of
the curb of Oak Street, and resurfacing Clement Street from the edge of the curb line to the edge
of the closest rail in the existing railroad lines.
2.2.6 Compliance with Applicable Laws and Re gulations: Collins
~shall comply with all federal, state, and local laws aad regulations applicable to the development
of the Reduced Density Alternative, including conditions of approval imposed by the City Parties
where such conditions are a matter of published policy or regularly imposed on comparable
dcvelopments, except to the extent that the City Parties have expressly agreed to waive or modif
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any City requirements as part of this Agreement.
2.3 Assignment of ights and obligations: Collins may assign his rights and
obligations under this Agreement to any other person or entity, pro id d that the City has first
agreed in writing that the person or entity is qualified to develop the Reduced Density
Alternative, which agreement shall not be unreasonably withheld by the City.
ARTICLE 3, CITY PARTIES' OBLIGATIONS
3.1 City Processing of Reduced Density Applications: City staff shall
cooperate in good faith with Collins in processing the Reduced Density Applications and any
other approvals or applications required by the City Parties for the Reduced Density Alternative,
In the opinion of the Parties, the Deduced Density Alternative represents a financially feasible
development of the Property.
3.1.1 Planning Board Consideration. As soon as City staff determines
that it is practicable and consistent with all applicable laws, City staff shall schedule a public
hearing to present the Reduced Density Applications to the Planning Board for consideration.
3.1.2 City Council Consideration: As soon as City staff determines it is
practicable after the Planning Board's actions or recommendations on the Reduced Density
Applications, and consistent with all applicable laws, City staff shall sehednle a public hearing to
present to the Council and the CIC for consideration any component of the Reduced Density
Applications that requires Council or CIC approval or action.
3.1.3 City Discretion to .Approve or Deny the Reduced Density
Alternative: The Planning ]hoard and Council, respectively, shall consider the Reduced Density
Applications at public hearing(s) held in accordance with all applicable laws. The Parties
expressly recognize that nothing in this Agreement shall limit or purport to firm it the City Parties'
discretion to approve, condition, modify, or deny the Reduced Density Applications or any other
project proposed for the Property.
3.1.4 Final Ae i n Date: The City Parties shall male best efforts to
take final action to approve or disapprove the Deduced Density Applications ("Final Action"
within four months of the Effective Date, and the Parties anticipate that the City Parties shall,
at the. latest, tale Final Action within six months of the Effective Date "Final Action
Date").
(a) If City staff determine that any of the Reduced Density
Applications are incomplete, the Final Action Date shall be extended by the period of time it
tales Collins to complete the application.
b) Following City staff's determination that all of the Reduced
Density Applications Ue complete, if C011iDs tales more than a total of thirty 30 days to
provide City staff' with additional inform -ation that staff determines is necessary to process the
Deduced Density Applications, t.heii the Fin. l Action Date shall be extended by the additional
number of days it tapes Collins to provide that information.
n.
c If the Final Action Date is extended pursuant to
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subsections (a)-(b) of this Section 3.1.4 for more than one 1 year from the Effective Late, then
upon sixty 6 days writtrm notice to the other Parties, any Party may terminate the Agreement
unless the City Parties have taken Final Action by that point, and if the City Parties have not
taken Final Action, then the Parties shall have no further rights r obligations under this
Agreement. The Parties shall also have no further rights or obligations under this Agreement if
the City Parties have not taken Final Action within two 2 years of the Effective Date.
3.1.5 Final City Action: If the City Parties do not tale final action b
the Final Action Late to approve the Reduced Density Applications in substantial conformance
with the Reduced Density Alternative Components, then the Agreement shall terminate and the.
Parties shall have no further rights or obligations under this Agreement.
(a) Within ten 10 days of any final action by the City Parties
to approve the (educed Density Applications, Collins may notify the City Parties in writing that
he believes that the approval is not 'in substantial conformance with the Duel Density
Alternative Components and wishes to terminate this Agreement, in which ease the Agreement
ent
shall immediately terminate and the Parties shall have no further rights or obligad'o s under the
Agreement. If Collins does not so notify the City Parties within the specified time period, then
the City Parties' approvals shall be conclusively deemed to be in substantial conformance with
all Reduced Density Alternative Components.
(b) If this Agreement ent t.erminates for any of the possible reasons
set forth in Sections 3,1.4 or 3.1.5 of this Agreement, then the Parties shall not be deemed to
have waived any rights they had as of the Effective Date.
3.1.6 other City Approvals: City staff shall cooperate in good faith in
the processing of, and the appropriate City Parities shall timer consider, any other approvals
necessary for Collins to develop and construct the Reduced Density Alternative,
3.2 other Governmental Approvals: Consistent with all applicable laws, the
City Parties shall cooperate with and support Collins in obtaining all approvals and permits from
non -Cit governmental entitles necessary for Collins to develop and construct the RMuced
Density Alternative.
3.3 Financial Assistance; Provided that the City Parties apps ;o e the I edu e l
Density Applications by the Final Action Late, and as further specified below, the City Parties
shall provide Collins up to a maximum of four million four hundred thousand dollars
million in financial assistance ("Maximum imam Financial Assistance'') to redevelop the Property by
cons[ructing the Reduced Density Alternative. The Maximum imum Financi l Assistance shall include
the valuo of all fees or taxes waived by the City well as all Tax Increment amounts paid to
Collins by the CI C, but shall not include the costs incurred by tbe' City Parties in funding or
constructing the off -site traffic mitigations specified in Section 3.4.
3.3.1 City Waiver of Dwelling Unit Tax; At the time that Collins
applies for a building permit for each Housing Unit, the City shall wive in its entirety the
applicable dwelling unit tax r quirod pursuant to AMC 3.60 ("Dwelling ift Tax").
3.3.2 City Deferment and Waiver of Foes; The City shall allow Collins
to defer; payrnent of all City impact fees, as Listed on the attached Exhibit "City Impact
Fees"), until immediately prior to the final inspection approval, pursuant to the AMC, of each
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Housing Unit. In addition, the City shall waive: i fifty pereent oho of a City Impact Pees
for the Affordable lousing Units and b) the City's Improvement Tax for the Affordable
Housing Units; and (ii) all demolition permit fees and all hauling fees related to remediation
activities that Collins incurs in connection with his obligations under Section 2.2.1 of this
Agreement.
3.3.3 CIC Payments: Subject to Collins and the CIC entering into a
mutually acceptable owner Participation Agreement "OPA" as provided in subsection 3.3.3(c)
below, the CIC shall pay Collins that portion of the site specific property tax increment revenue
allocated and paid to the CIC pursuant to California Health and Safety Code Section ob,
and mailable to the CIC to fund the Eligible Activities (defined below), attributable to assessed
values of the Property, including improvements thereon, in excess of the assessed values for the
Property and improvements thereon for the 2009/2010 property tax year ("Tax Increment'').
The Tax Increment payable to Collins, including the 0% Set Aside Funds and Ton Dousing
Funds portions (each defined below), shall be more particularly defined in the OPA. All Tax
Tnerement paid to Collins shall be used exclusively for eligible redevelopment activities and costs
("Eligible Activities on the Property that are consistent with all applicable requirements of the
Community Redevelopment levelopment Lair (Health Safety Code section 33000 et se q.) and the
CI 's Business and Waterfront Improvement Plan "BWIP as well as the settlement
agreement entered into on April 25, 1990, between the City of Alameda and Clayton Guyton and
1 odessa Henderson the "Clayton Guyton Settlement Agreement
(a) Beginning on the date the CIC first receives Tax Increment
from a reassessment triggered either i by Collins' sale of the Property to a third -party or h by
any other event, provided that Collins has undertaken substantial site preparation or other
improvements on the Property, and continuing for forty -eight months thereafter
("'Anticipated Project Build -out Period"), the CIC shall pay to Collins for Eligible Activities
specifically related to the Affordable lousing Units one hundred percent 100°x) of that portion
of the Tax Increment required to be set aside for affordable housing pursuant to the CRL ("20%
Housing Set Aside Funds Upon conclusion of the Anticipated Project Build-Out Period,
regardless of whether project build -out has occurred, the CIC shall continue to pay Collins, for
Eligible Activities specifically related to the Affordable lousing Units, one hundred percent
(100%) of the ,ono Mousing Set Aside Funds for a maximum period of ten 10) additional years,
or until such time as the MaximLim Financial Assistance has been provided, whichever occur
first,
(b) During the Anticipated Project Build -curt Period, the CI
shall also p -ay to Collins fifty percent 0% of the portion of Tax Increment that is not required
to be set aside for affordable housing under the C L "Non Housing Funds" for Elicrible
Activities 'Costs, Upon co nelus ion of the A. ticlpated Project Build -Dint Pei iod, regardless f
whether project build -out has occurred, the CIC. shall continue to pay Collins for Eligible
Activities costs fifty percent of the Non-Housing Funds for a maximum period of seven
7) additional years, or until such tinic as the Maximum Financial Assistance has been provided,
whichever occurs first.
(c) The Parries shall jointly establish an escrow account
("Escrow Account" with First Aincrican Title Company, Pleasanton Office ("Escrow
Holder"). The CIC shall deposit the appropriate amounts of Tax Increment into the Escrow
Account within thirty days of recciving the same. The Parties small execute and submit to
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the Escrow Folder joint escrow instructions authorizing Escrow Holder to disburse funds to
Collins for reimbursement of Eligible Activities costs upon Escrow Holder's receipt of written
verification from the City that i Collins has paid to the City all City Impact Fees then owed to
the City, and (ii) the CIC has determined, pursuant to subsection d of this Section, that all costs
incurred by Collins for which Collins is seeking reimbursement are for Eligible Activities. The
P shall each pay fifty percent 50% of any fees and costs incurred by the Escrow Holder in
connection with the Escrow Account. Collins shall be entitled to receive all interest monies
generated while funds are in the Escrow Account, provided that in no event shall Collins receive
more than the Maximum m Financial Assistance, If, as a result of interest generated while funds
are in the Escrow Account, the total amount of funds that would otherwise have been disbursed
from the Escrow Account to Collins exceeds the Maximum Financial Assistance, then any
remaining funds shall be returned to the CIC.
d) To ensure that Collins' Affordable Housing Unit
obligations are fully satisfied and that Collins uses the Tax Increment provided by the CI
exclusively for Eligible Activities, Collins and the CIC shall negotiate in good faith a mutually
acceptable OPA pursuant to the CRL. The OPA shall, at a minimum, provide a mechanism for:
(i) the CIC to ensure that the costs which Collins proposes to pay with, or be reimbursed from,
Tax Inerement are for Eligible Activities, including by requiring an accounting of how all Tax
Increment funds will be used; h the CIC to ensure that Collins is complying with any applicable
pre ailing gage re uiremcnts triggered by use of the Tax Increment pursuant to applicable CRL
requirements; (iii) imposition of covenants running with the land to ensure that Collins and his
successors continue to meet all of the OPA requirements, including those pertaining to affordable
housing obligations and maintenance and use -of the Property, pursuant to applicable CRL
requirements, and i Collins and the CIC expeditiously resolve any disputes regarding the
foregoing. If Collins and the CIC are unable to agree on terms of a mutually acceptable OPA
prior; to the Final Action Date, then the Parties shall have no further rights or obligations render
this Agreement.
e At least thirty days prior to requesting any
disbursextuent of Tax locrement funds from the Escrow Account, Collins shall submit to the CI
a report identifying the Eligible Activities costs for which these specific funds are to be used
"Proposed ed L cn i urie Report"'). The CIC shall, within thirty days of receiving the
same, determine 1n good faith whether the activities specified in the Proposed Expenditure
Report comply with the CRL and the BWIP and shall promptly notify Collins and the Escrow
Holder of its determination. If the CIC determincs that the costs are not for Eligible Activities,
then the Parties shall cooperate in good faith to revise the Proposed Expenditure Report to ensure
that the subject funds will only be used to pay Eligible Activities costs. The provisions of this
subsection e will be further elaborated in the OPA.
3.4 Off-Site Traffic Mitigations: The City Parties shall be responsible for
funding a portion of the off -site cumulative traffic mitigation measures identified in the MMRP
for the Deduced Density Alternative, asp specified in the attached Exhibit 7.
ARTICLE NO FURTHER CHALLENGES I APPROVAL
4,1 No Further r; Challenge In the event that, prior to the Final Action Date,
the Council approves the Reduced Density Applications in substantial conformance with the
duced D ens ity Alternati v c Components, then C ollins agrees never to file or support in any
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way, financially or otherwise, any claim, cause of action, lawsuit, or demand, or action of any
kind against the City Parties arising from or relating to: the City Parties' final action on the
Proposed Project; the City Parties' final action on the Deduced Density Alternative; or the
matters alleged in Plaintiff's Lawsuits.
4.2 Tolling of Statute of Limitations: All statutes of limitations and other
time periods or deadlines that may apply to or affect any claims, causes of action, or defenses
arising from or related to the Council's denial of the Appeal shall be tolled from the date of that
denial until the Final Action Date or the date that the City Parties take action to approve or
disapprove all components of the Deduced Density Applications, whichever occurs first.
ARTICLE 5, DISPUTE RESOLUTION
5.1 Dispute Resolution Procedure: No Party may File or pursue any litigation
regarding any dispute, claim or controversy arising out of or relating to this Agreement or the
breach, termination, enforcement, interpretation or validity thereof, until at least forty -five 4
days after it serves a written demaDd to cure on the other Party or Parties, during which time any
statutes of limitation, repose or other similar deadlines shall be tolled. In the event that such a
written demand to cure is served, the Parties small meet and confer in a good faith effort to
resolve the dispute, claim or eontrovcrsy. If such meet and confer; efforts fall, then the Part
asserting a dispute, claim or controversy may File litigation immediately after expiration of the
forty -fire day period referenced above.
ARTICLE RELEASE ALTO WAIVER of CLAIMS
6.1 Release by Collins: Except as to the rights, claims, or obligations as may
be created by this Agreement, Collins waives, releases, and forever discharges the City Parties
and their agents, employees, officers, or officials from any and all actions, causes of action,
claims, complaints, obligations, costs, expenses, damages, losses, liabilities, judgments, and
demands that Collins ever had or now has, or may have in the future, whether known wn or
unknown: i arising from or related to the wets which are the bases for Plaintiff' La rsuits or
the subject of this Agreement; and (ii) for dal .ages to the Property or any portion of or interest in
the Property, or to any person with are interest in the Property, for the City Parties' alleged
unreasonable pre condemnation conduct or delay with respect to the Property, alleged
unreasonable pre-condemnation interference with the use, financing, sale, or development of the
Property, or other claims under the theory of Mopping City of Whittier (1972) 8 Cal. 3d 39,
regardless of whether the City Parties use eminent domain to acquire the Property, or any portion
of or interest in the Property.
6.2 Release by the City Parties: Except as to the rights, claims, or
obligations -cis may be created by this Agreement, the City Panties waive, release, and forever
discharge Collins and his agents from any and all actions, causes of action, claims, eomplahits,
obligations, costs, expenses, damages, losses, liabilities, judgments, and demands that the City
Parties ever had or now ba e, or may have in the future, whether known or unknown, arisin
from or related to the facts which arc the bases for Plaintif'f's Lawsuits or for any affirmative
def'eftses pled, or that could have been pled, thereto.
6.3 1542 Release: The releases agreed to by Collins and the City Parties in
this Article, 6 are intended to he a full settlement of each and every claim of every kind and
Page 10 of 1
nature, known or unknown, as between those parties for whom a release has been exchanged
arising from Plaintiff's Lawsuits or the subject of this Agreement. Collins and the City Parties
each certify that they have read Section 1542 of the California Civil Code, set out below:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which if
known by him or her must have materially affected his or her settlement with the
debtor.
Collins and the City Parties expressly waive application of Section 1542 of the Civil Code
"1.542 Release") Collins and the City Parties each understand and acknowledge that the
significance and consequence of the releases in this Agreement, combined with the 1542 Release,
is that even if any said Party should eventually suffer additional damages or harm ar 'i sing from
the Plaintiff's Lawsuits or the subject of this Agreement, said Party is not permitted to make any
claim for such damages. Collins and the City Parties each further understand and acknowledge
that it accepts the 1542 Release even as to unknown clairns for damages arising fxoln the
Plaintiff's Lawsuits or the subject of this Agreement that may exist as f the Effective Date and
that, if known, would have materially affected their decision to execute this Agreement,
regardless of whether said Party's lack of knowledge is the result of ignorance, oversight, error,
negligence, or any other cause.
ARTICLE 7: GENERAL PROVISIONS
7.1 Entire Agreement, Waivers: This A.grcer ent, including all exhibits,
contains the entire understanding and agreement of the Parties. There ae no oral or written
representations, understandings or ancillary covenants, undertakings or agreements that are not
contained or expressly referred to in this Agreement. A and all waivers of the provision (s) of
this Agreement will he in writing and signed by an authorized re rese t tive of the Party to be
charged with such waiver(s). The waiver by any Party of any provision contained in this
Agreement will not be deemed to be a waiver of any other provision in this Agreement, nor will
any custom or practice that may develop among the Parties in the administration of this
Age ;eement be construed to waive or diminish the rights of any Party to insist upon performance
in strict accordance with all provisions of this Agreement.
7.2 Captions: The headings and captions used in this greernient are for
convenience only and will not affect the interpretation of this Agreement.
7.3 Construction: The provisions of this greem nt and the attached e bibits
hall be construed as a whole according to their; common meaning and not strictly for or against
any Party, and in a manner that will achieve the purpose and objectives of this Agreement.
Notices: es: A.ny notice required under* this Agreement will be in writing and
personally dolivered, or sent by certified mail (return receipt requested and postage prepaid),
overnight delivery, or facsimile, to the Parties as indicated below. Any Party may change its
mailing address or facsimile at any time by giving written notice of such change to the other
Paztios in the nianneri provided in this Section at least ten Io days prior to the date s ch change
is effected. All notices Linder this Agteeniont will be deemed given, received, made or
communicated on the earlier of the date personal delivery is effected or on the delivery date
Page 11 of 16
shown on the return receipt, air bill or facsimile.
Collins:
Francis Collins
Catherine Collins
6050 Hollis Street
Emeryville, CA 94608
Tel. 510 653 -6871
Fax 510 653 -6988
With a Copy to:
Gregory L. Harper
Kathy Sher
Harper Associates
5858 Horton Street, Suite 255,
Emeryville, CA 94608;
Tel: 510.420.8455
Fax: 510.420.8913
email g _@hqrpe_rIq.w,net
The City Parties
Teresa Highsmith, City Attorney
City of Alameda
2263 Santa. Clara Avenue, Room 280
Alameda, CA 94501
510.747-4750
Fax: 510.747 -4767
Aran Marie Gallant,
Interim City Manager
City of Alameda
2263 Santa Clara Avenue, Room 280
Alameda, CA 94501
Tel: 510.747-4700
Fax: 51 0,747-4704
With a Copy to:
Robert S. Perlmutter
Shute, Mihaly Weinber ;gar I L
396 Hayes ,street
San Francisco, CA 94102
Tel: 4.1 5.552.7272
Fax.. 415.552.5816
7.5 No Ain tYssion of Liability: This rccment is a compromise of disputed
Page 12 of 16
claims and shall not in any way be construed as an admission by the City Parties that they have
acted wrongfully or unlawfully with respect to Plaintiff's Lawsuits r the s ubject o f this
Agreement.
6 Admissibility of Agreement. In any action to_ enforce its teriris, this
Agreement shall be fully admissible.
7.7 No Duress; This Agreement has been drafted jointly by the Parties and is
executed voluntarily by each of the Parties, without any duress or undue influence on the part of,
or on behalf of, any of them. Each of the Parties has read and fully undr,%rstands the meaning of
each provision of this Agrecment and has gelled on the independent advice and representation of
legal counsel in entering into this Agreement.
7. Severability: If any provision of this Agreement becomes invalid, void or
unenforceable for any reason or is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remaining provisions of this Agreement will remain in full force
and effect and will in no way be affected, impaired or invalidated by such determination, the
provisions of this Agreement being severable in such instance.
7.9 Effectiveness: This Agreement will be effective as of the Effective Date,
7.10 Time is of the Essence: Time is of the essence of this Agreement and of
each and ever' provision in this Agreement,
7.11 Further Action: The Parties agr= to execute such other documumts and
tape such other action as may be reasonably necessary to perform this Agreement.
7.12 Covenants Not to Sue: The Parties covenant and agree that, except as
required to enforce this Agreement, they will never, individually or with any other person or
entity, or through any agent or member, commence or prosecute against each other any action. or
proceeding for any el-cdm or matter that is settled and released by this Agreement,
7.1 Binding Upon Successors: This Agreement shah be binding upon and
inure to the benefit of the respective heirs, successors, assigns, and repr ;e entati es of the Parties.
7.14 No Third Party Beneficiary: This Agreement is not intendod, nor will it
be construed, to create any third -party beneficiary rights in any person who is not a Party.
7. 0 Modifications: This Agreement may be modified from time to time only
by express written consent of all Parties to this Agreement.
7,16 Applicable Law: This Agreement will he governed by California law.
Any litigation arising under or in connection with this Agreement shall be prosecuted in the
Superior Court of California, County of Alameda, and all Parties waive any respective rights to
change venue pursuant to Section 394 of the Code of Civil Procedure or any other provision of
law.
7.17 Future Attorneys' Fees and Costs: If a lawsult or motion is brought or a
claim is sae to enforce this Agreement by any Party, then the prevailing Party or Parties in that
action or proceeding shall be entitled to receive from the non-prevailing Party or Parties the
Page 13 of 1
reasonable attorneys' fees and costs including expert witness fees and costs) incurred by the
prevailing Parity or Karnes. The prevailing Party or Parties' right to recover attorneys' fees and
costs is conditioned on that Party's or Parities' good faith compliance with the Dispute Resolution
procedure set forth in Article 5.
7.18 Warranties of Authority: The signatories to this Agreement herby
represent and wcarrant that they are duly authorized to execute this Agreement on behalf of the
Parties for which they have signed and that they have all necessary lawful authority, and have
taken all necessary actions, to execute this Agreement.
7.19 CounterpartsXacsimile Si n ttrr• This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, and all of which, when
taken together, shall constitute ore and the same document. All signatures need not appear on
the same page of the Agreement and signatures of the parties transmitted by facsimile shall be
deemed binding,
THE REA MAINDER of THIS PAGE HAS BEEN INTENTIONALLY LEFT
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Page 14 of 1
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Exhibit 1: F edu ced Density Alternative Site Plan "Site Plan" (September 14, 201
Tldal Cana
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Planning Board Clarifications and Conditions:
Open Space Approximately two acres of waterfront open space shall be provided, A
"spine" o f open space co nnecting the waterfront park at Blanding to Clement may b
counted t oward the two acres provid that the spine is a minimum of 24 feet wide.
Page 1 of 2
b. clement street: The Clement street curb -to -curb dimension shall match the rest of
Clement street curb -to -curb dimension of 48 feet. A sidewalk and tree plantings shall
be p
c. oak street: The oak street frontage shall include a sidewalk.
d. oak street Park Extension: To create ontinuous and attractive pedestrian link to
the waterfront along oak Street, the guest parking along the edge of the property
adjacent to the Park street landing should be replaced, reduced or attractively
land scaped to create a welcoming pedestrian `{pa eo" leading from the intersection
of oak and Blanding (arid the Little Huse Caffl to the new waterfront park.
e. Blanding street Extension The Blanding street extension shall provide two travel
lanes, one parking lane, two sidewalks, and street trees.
f. Elm Street E The Elm Street Extension should include two travel lanes, one
parking lane, and a planting strip on both sides of the street. If it is straight, then
sidewalk shall be provided in front of the hones on Elm street. A sidewalk is not
necessary on the west side of the street. on the west side (Mini- storage side
property line), the right of way should provide a curb, and a planting strip for a roar of
trees along the entire length of the western property line to screen the metal
buildings of the Mini storage. The existing chain link with barbed wire fence should
be replaced with a well- designed fence. Alternatively, the Elm street extension may
be designed with a "jog" similar to design shown at the public hearing as =`plan B''.
g. Hou in t A maximum total of 182 units would be provided including those units obtained
pursuant to an Affordable Housing Density Bonus application.
h. Blandin Hones The 15 homes that are oriented with their sides facing Elanding
should be designed with a front door and attractive "front elevation" facing Elanding.
i. Dousing Diversity The project should include a diversity of housing types such as
single family homes, duets, attached town homes, flats and multifamily housing. The
project should have optional floor plans available for buyers with disabilities, such as
a floor plan with an elevator or a floor plan with the Master Bedroom on a lower floor
with the kitchen and living area, which may require a one car garage.
j. Height Limits and Parking Building heights should vary between two and four
stories. The multifamil housing should not exceed four stories or o' in height and
should include a minimum of at least one parking space per unit. single family and
town home buildings should be a maximum of three stories or 38' feet in height.
APLANNIN TMReporls Re olutlorsWl 0\6-21 -1 Oftatworks Project FileskBoal arks PD- Denial Resolution.DO
Page 2 of 2
Exhibit 2 City Park Rules
AJLAMIF-.DA
IMi CIWATION AND PARK DE P"TWMi N T
(5110)'747m47529
PARKIS OPENIFROM DAWN TO DUSK
AND CLOSED TO 'TIC PUBLIC ALL OTIMR
nOUPs,-S EXCE PT BY SPE CIAla PERNM
DOGS MUST BE LVASHICAD AND TINDER
CONTROL
DOG OWNERS ARIE RE SPONS a 011E
FOR CLEANING UP AFTER 1'IIF,IR DOGS
NO ALCOHOLIC BEVERAGE S ALLOWED
NO SKATEBOARDING
MOTOR VEHICLES IIRO-.IIBMD FXCF PT IN
DTSIGNATED AAkF,AS OR BY SPACIAL PE41UMT
ONIN
ALI,1`IIT ABOVE ENFORCEABLE RYAJJVM ;DA
NIUNICIPAL CODS
December, 2,C)03
EXHIBIT FORM of PUB ACCESS EAS
R R BY AND
WH R RD R TD.
City Attorney
City of Alameda
2263 Santa Clara Avenue, ##2
Alameda, CA 94501
DEED OF PERPETUAL OPEN SPACE AND PUBLIC ACCESS EASEMENT
This DEED OF PERPETUAL OPEN SPACE AND PUBLIC ACCESS EASEMENT is
entered into this day of 20 by and between Francis and Erin Collins,
"Grantor"), and the City of A.latneda. ("Grantee"). Grantor and Grantee are sometimes
collectively referred to herein as "the Parties' and individually as "a Pa t
RECITALS
A. Grantor is the sole owner of certain real property, located within the City of Alarned,
Alameda County, California,. Said real property comprise two 2 acres more or less and is more
particularly described in Exhibit "A" attached hereto and incorporated herein ("Property"). A
map depicting the location of the Property is set forth in Exhibit "B" attached hereto and
incorporated herein.
E. The Property possesses open space, parkland, and scenic values (referred to collectively
herein as "Open Space Values" of importance to the Grantor, the Grantee, and the people of the
City of Alameda (the "City"). The Property was previously used for industrial purposes and is
presently in blighted condition. On September 2010, Grantor, {grantee, and the City of
lar Leda Commuiu*ty Improvement Commission ("CI C") entered into a Settlement Agreement
concerning the redevelopment ent of the Property and adjacent lands owned by Grantor. Pursuant to
this Settlement Agreement, Grantee and the CIC have issued certain development approvals for
Grantor to develop housing on his adjacent lands and Grantee has agreed to construct, and
dedicate to Grantee, a public park on the Property for use by the general public.
C. Grantor has voluntarily offered this Deed of Perpetual Open Space and Public Access
Easement in order to restrict the use of the Property in any in nner other than for public open
space uses.
Rage 1 of 1
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the respective
agreements of the Parties hereinafter set forth, and other good and valuable consideration., the
receipt and sufficiency of which are hereby acknowledged, and pursuant to the laws of the State
of Califoia, i
rnncluding but not limited to California Civil Code section 815 et s and any
anmdments or successor provisions thereto, Grantor and grantee hereby agrees as follows;
1. Grant and Acceptance of asement Grantor hereby voluntarily grants and
conveys to Grantee for valuable consideration, and Grantee hereby accepts, an open space and
public access easement in perpetuity and in gross ors, over, and across the Property, of the nature
and character hereinafter set forth (hereinafter "Easement"), subject to the terms and conditions
of this Deed.
2. Purpose The purpose of this Easement is to: a ensure that the Property will
not be further subdivided or otherwise developed except for specified public park purposes;
and preserve the open Space Values of the Property and maintain the Property for use as
a public park. grantor intends that this Easement will confine the use of the Property to
those uses and activities which are consistent with the purpose, and allowable by the terms
and conditions, of this Easement.
31 Rights of Grantee To accomplish the purpose of this Easement, the
following rights are conveyed to Grantee:
a. To preserve and protect the open Space Values of the Property.
b. To enjoin any activity or use of the Property that is inconsistent with the purpose
and/or provisions of this Easement, and to require the restoration of such areas or features of the
Property that may be damaged by any inconsistent activity or use.
C. To enter upon the Property as it determines is reasonably necessary to (1) monitor
Grantor's compliance with the ten s of this Easement, (ii) enforce the terms of this Easement,
(iii) ensure the Property is maintained for public park purposes, consistent with Section 2.2 of the
Settlement Agreement; and i use the Property for such public park purposes.
d. To allow the general public unlimited access from dusk to dawn to use the
Property in the sane rnaimer as it is allow d to use other similar parks within the City and
subject to the rates of the Alameda Recreation and Park Department "Park Rules"), as set f'or #tb
in the Settlement Agreement.
Activities and Uses.
Page 2 of 1
a. Any activity on or use of the Property inconsistent with the purpose of this
Easement is prohibited in perpetuity. Without limiting the generality of the foregoing, Exhibit
C VO attached hereto and incorporated herein, sets forth activities and uses regarding the Property
which are consistent with the purpose of this Easement, and which are hereby expressly
permitted and, any permitted use described in Exhibit C shall not require the approval of
Grantee; and Exhibit "D attached hereto and incorporated herein, sets forth activities and uses
regarding the Property which are inconsistent with the purpose of this Easement, and which are
hereby expressly forbidden. The activities and uses set forth in both Exhibits C and D are not
necessarily exhaustive recitals of consistent and inconsistent activities, respectively. They are set
forth both to establish specific permitted and prohibited activities and to provide guidance in
determining the consistency of other activities and uses with the purpose of this Easement, and
Grantee expressly reserves the aright to determine, on a ease -by -case basis, whether a specific
activity or use of the Property is permitted. Any activities and uses not specified in Exhibit C
shall require prior written approval of Grantee,
b. In cases where Grantee's approval or consent is required hereunder, such approval
or consent shall be based upon compliance with the provisions of this Easement and the lil ely
effect of the proposed activities and uses upon the open Space values protected by this
Easement. Grantee's decision on a request for approval shall be based on the specific activities
and uses in question without following or establishing precedent. Approval or disapproval shall
be at the sole discretion of Grantee and may be granted upon conditions which further the
purposes of this Easement.
C. hi the event Grantor is required to solicit the approval or consent of Grantee
pursuant to this Easement., grantor shall submit to Grantee a written description of the proposed
activities and uses, including information of its size, function, capacity, duration and location
("proposed use report" no later than sixty days prior to the proposed commencement of the
proposed activities and uses. If a permit is required from any other governmental entity for the
activities and uses, the Grantor shall submit the proposed use report to the Grantee within five
days of filing; an application for said permit. Grantee shall issue its written approval,
disapproval, consent, or refusal of consent, together with a written statement of explanation if
Grantee has disapproved or refused to consent to the proposed use, within forty -five days of
the receipt of Grantor's written request. Grantee's failure to respond shall be deemed to be a
refusal of consent but in such event Grantee shall, within twenty 20 days of a request by
Grantor, provide a written statement of explanation for Grantee's disapproval or refusal to
consent. Upon the completion of the proposed activities and uses, Grantee shall, at the request of
Grantor or Grantee, inspect the Property and, if the activities and uses were performed in
accordance with the terms of this Easement and the approvals or consents issued by Grantee
hereunder, issue a certificate to that effect, elated as of the time of inspection.
Grantee's Remedies.
Page 3 of 1
a. If Grantee determines that Grantor is in violation of the terns of this Easement, or
that a violation is threatened (hereinafter collectively "the violation"), the Grantee shall give
written notice to the Grantor of such violation and demand reasonable corrective action sufficient
icient
to cure the violation. where the violation involves injury to the Property resulting from any use
or activity inconsistent with the purpose of this Easement, the Grantee may require reasonable
corrective action to restore the portion of the Property so injured. If Grantor: i Fails to cure the
violation within thirty 30 clays after receipt of notice thereof from the Grantee; (ii) under
circurnstances where the violation cannot reasonably be cured within thirty o days, fails to
begin curing such violation within the thirty o day period; or (iii) fails to continue diligently to
cure such violation until finally cured, then the Grantee may bring an action at law or in equity in
a court of competent jurisdiction to enforce the terms of this Easement, to enjoin the violation, ex
parte as necessary and pursuant to applicable statutes and rules of court, by temporary or
permanent prohibitory or mandator injunction, to recover any damages to which it in ay be
entitled for violation of the terms of this Easement or injury to any open Space values protected
by this Easement, and to rewire the restoration of the Property to the condition that existed prior
to any such injury. Without limiting Grantor's liability therefore, grantee, in its sole discretion,
may apply any damages recovered to the cost of undertaking any corrective action on the
Property. Grantee's rights under this paragraph apply equally in the event of either actual or
threatened violations of the terms of this Easement, and Grantor agrees that Grantee's remedies
at law for any violation of the tens of this Easement are inadequate and that Grantee shall he
entitled to the injunctive relief described in this paragraph, both prohibitive and mandatory, in
addition to such other relief to which Grantee may be entitled, including speci fic performance of
the terms of this Easement, without the necessity of proving either actual damages or the
inadequacy of otherwise available legal remedies; Grantor Further agrees that Grantee shall not be
required to post any bond in any action or proceedings pursuant to this paragraph.
b. If Grantee, in its sole discretion, determines that circumstances require immediate
action to prevent or mitigate significant dw age to the Open Space Values of the Property,
Grantee may pursue its remedies under this paragraph without the requirerne .t of prior notice to Grantor or without waiting for the period provided for the cure to expire; provided, however, that
Grantee shall attempt in good faith to provide such written or oral notice as Grantee may d1
reasonable under the circumstances, nces, but in no event later than ten (1 0) days after the elate of entry
onto the Property. Grantee's rights under this paragraph apply equally in the event of either
actual or threatened violations of the ten s of this Easement, and Grantor agrees that Grantee's
remedies at law for any violation of the terms of this Easement are inadequate and that Grantee
shall be entitled to the injunctive relief described in this paragraph, both prohibitive and
mandatory, in addition to such other relief to which Grantee may be entitled, including specific
performance of the terms of this E asement, without the necessity of proving either actual
damages or the inadequacy of otherwise available legal remedies; Grantorfarther agrees that
Grantee shall not be required to post any bond in any action or proceedings pursuant to this
paragraph.
Page 4 of 1
C Grantee's reinedies described in this par agraph 5 shall be cu.inulative and shall be
in addition to all remedies now or hereafter existing at law or in equity.
Grantee's Discretion. Enforcement of the terms of this Easement shall be at
the discretion of Grantee, and any forbearance by Grantee to exercise its rights under this
Easement in the event of any breach of any term of this Easement by Grantor shall not be
deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of
the sane or any other tear of this Easement or of any of Grantee's rights under this
Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any
breach by Grantor shall impair such right or remedy or be construed as waiver.
Notwithstanding any other provision of law, all waivers inust be express and in writing.
7. Reserved Ri ghts. Grantor reserves for itself, and its personal representatives,
heirs, successors, transferees and assigns, all rights accruing from ownership of the Property
that are not extinguished by or inconsistent with the purposes of this Easement.
8 Waiver of Certain Defe Grantor hereby waives any defense of laches,
estoppel, prescription, unclean hands or the doctrine of changed circumstances.
91 Acts Beyond Grantor's Control Nothing contained in this Easement shall be
construed to entitle Grantee to bring any action against grantor for any injury to or change in
the Property resulting from causes beyond Grantor's control, including, without limitation,
fire, flood, stone, and/or earth movement, or from any prudent action taken by Grantor under
emergency conditions to prevent, abate, or mitigate significant injury to the Property
resulting from such causes; provided, however, that nothing in this paragraph shall be
construed to waive Grantor's obligation to maintain the property consistent with the terms of
this Easement and the Settlement Agreement.
10, Condition of Title. Except for the exceptions to title insurance set Forth in the
policy of title insurance issued to Grantee at the time of execution and recordation of this
Easement, Grantor covenants that the Property r at the time of execution and recordation of
this Easement, free and clear of all liens, encumbrances, assessments, easements, leases
(recorded and unrecorded), and taxes.
I1. Subordination. Any financing lien or encumbrance on the Property shall be
subordinate to this Easement.
1. Costs and Liabilities. Grantor retains all responsibilities and shall bear all
costs related to the ownership, operation, upkeep, and maintenance of adequate
comprehensive general liability insurance coverage. Without limiting the foregoing, Grantor
shall keep the Property free of any mechanics' liens arising out of any work performed for,
Page 5 of 1
materials furnished to, or obligations incurred by Grantor which may result in a mechanics'
lien or lis pendens being recorded against the Property.
13, Real ,.Pr pet Possessory Interest 'Faxes Grantor shall pay before
delinquency all real property and possessory interest taxes, assessments, fees, and charges of
whatever description levied on or assessed against the Property by competent authority,
including any taxes imposed upon, or incurred as a result of, this Easement (collectively
referred to herein as "Taxes"). Upon request by Grantee, Grantor shall furnish that Grantee
with evidence satisfactory to it that such Taxes have been paid.
14, Hold Harmless. grantor shall hold harmless, indemnify and defend Grantee
and its officers, directors, governing members, employees, contractors, attorneys, and agents,
and their successors and assigns, and each of them, from and against all liabilities, penalties,
costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including
without limitation, reasonable attorneys fees, arising from or in any way connected with
injury to or the death of any person or physical damage to any Property, resulting from any
act, omission, condition or other ratter related to or occurring on or about the Property as a
result of: i Any breach or violation of the terms of this Deed or the Easement by Grantor, or by
anyone acting for or under the authority of Grantor, or (ii) any use of the Property or any other
activity of Grantor, or by anyone acting for or under the authority of Grantor, on, at, or with
respect to the Property. Any indemnification required under this paragraph'14 shall be in
addition to any Indemnification required under the Settlement Agreement.
15, Amendment. If circumstances arise under which an amendment to or
modification of this Easement is appropriate, grantor and Grantee rimy jointly amend this
Easement; provided that no amendment shall be allowed that will affect the qualification of
this Easement under any applicable laws, including, but not limited to, California Civil Code
Section 815.1 and any amendments or successor provisions thereto, and any amendment shall
be consistent with the purpose of this Easement, and shall not affect its perpetual duration.
Any such amendment shall be recorded in the official records of the County Recorder for the
County of Sierra, California.
Termination of aseme t. The parties agree that it is the intent of this
Easement to ran with the laird in perpetuity. If, however, circumstances arise in the future
such as to render the purposes of this Easement impossible to accomplish, this Easement may
be terminated, in whole or in hart, only by judicial proceedings in a Court of competent
jurisdiction, and the amount of the compensation to which Grantee shall be entitled from
such sale, exchange, or involuntary conversion of all or any portion of the Property
subsequent to such termination or extinguishment shall be determined, unless otherwise
provided by California law at the tune, in accordance with paragraph 17. Grantee shall use
all such proceeds in a manner consistent with the Open Space purposes of this Easement.
However, grantor and Grantee intend that this Easement shall not be terminated as a result of
Page 6 of 1
circumstances such as a change in the surrounding land uses, or any such other change in
conditions relating to the Property or the property surrounding or adjacent to the Property.
17, Compensatio This Easement constitutes a real property interest immediately
vested in Grantee. For the purpose of paragraph. 16 (concerning terrrrination of Easement) the
parties stipulate that this Easement has .a fair market value determined by multiplying i the
fair market value of the Property as if it could be developed unencumbered by this Easement
(minus any value attributable to improvements by (ii) the ratio, expressed as a percentage, of
the value of this Easement at the time of this grant to the value of the Property (minus any
value attributable to improvements) as it coul be developed unencumbered by this Easement
at the time of this grant.
18, Co If all or any part of the Property is taken by exercise of the
power of eminent domain or acquired by purchase in lieu of condemnation, whether by
public, corporate, or other authority, so as to terminate this Easement, in whole or in past,
Grantee shall be entitled to compensation in accordance with the ratio set forth in paragraph
17. All expenses reasonably incurred by Grantors and Grantee in connection with the taking
or in lieu purchase shall be paid out of the amount recovered.
19. Subsequent Transfer Grantor agrees to incorporate by reference the terms
of this Easement in any deed or other legal instrument by which it divests itself of any
interest in all or a portion of the Property, including, but not limited to leasehold interests.
Grantor further agrees to give written notice to Grantee, in accordance with the provisions of
paragraph 21-, of the transfer of any interest in all or any portion of the Property within thirty
(30) days after the transfer. The failure of the Grantor to perforn-1 any act required by this
paragraph shall not impair the validity of this Easement or limit its enforceability in any way.
This Easement shall be recorded, and any transferee of title to all or any portion of the
Property shall take title subject to the teams of this Easement, whether or not the Easement is
specifically referred to in the deed or other instrument of conveyance.
Costs of Enforcement. Any costs incurred in enforcing the teas of this deed
including costs of suit and reasonable attorneys' fees, and any costs of restoration
necessitated by Grantor's violation of the terms of this Easement (including costs of routine
monitoring compliance) from such time as the violation was first identified through
completion, to the satisfaction of Grantee, of any required. restoration, shall be borne by
Grantor.
1. Notices. Any notice required under this Agreement will be in writing and
personally delivered, or sent by certified mail (return receipt requested and postage prepaid),
overnight delivery, or facsimile, to the Parties as indicated below. Any Party may change its
mailing ad dress or facsimile at any time by giving written notice of such change to the other
Party in the manner provided in this Section at least tern 10 days prior to the date such
Page 7 of 1
change is affected. All notices under this Agreement will he deemed given, received, made
or communicated on the earlier of the date person al delivery i s effected or on the delivery
date shown on the return receipt, air bill or facsimile:
To Grantor:
Francis and Erin Collins
6050 Hollis Street
Emeryville, CA 94608
With a Copy to:
Gregory L. Harper
Sheri Kramer
Harper Associates
5812 Hollis Street
Emeryville, CA 94608
Tel: 510.420.8455
Fax: 510.420.8913
To Grantee:
City Attorney
City of Alameda
2263 Santa Clara. Avenue, loom 280
Alameda, CA 94501
Tel: 510.747 -4750
Fax: 510.747-4767
City Manager,
City of Ala.eda.
2 263 Santa. Clara'A enue, Room 2 80
Alameda, CA 94501
Tel: 510.747 -47
4 -4104
Fax: 510.747-4704
With a Cop t i
Robert S. Perlmutter
Shute, Mihaly Weinberger LL
396 Hayes S
Sala Francisco, CA 94102
Teti 415.552.7272
Fax: 415.552.5 816
Page 8 of 13
Recordation. Grantee and Grantor shall work together to ensure that this
instrument is recorded In a timely fashion in the official records of the County Recorder for
the County of Alameda, California. The instrument may be re-recorded at any time as may
be required to preserve rights in this Easement.
23.
General Provisions.
Controlling law The interpretation and perforrrrance of this Easement shall be
governed by the laws of the State of California.
b. Liberal construction. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed in favor of the oral 1t to affect the
purpose of this Easement and the policy and purpose of California Civil Code Section 815. If are
provision of this instrument is found to be ambiguous, an interpretation consistent with the
purpose of this Easement that would reader the provision valid shall be favored over any
interpretation that would reader it invalid..
C. Sever abilr if any provision of this Easement is found to be invalid, the
remainder of the provisions of this Easement, or the application of such provision to any person
or circumstance other than those as to which it has been found to be invalid, shall not be affected
thereby.
d. Entire Ageement This instrument sets Forth the entire agreement of the parties
with respect to the Easement ent and supersedes all prior understandings, discussions, negotiations,
or agreements relating to the Easement, all of which are merge d herein. No alteration or variation
of this instrument shall be valid or binding unless contained in an amendment that complies with
paragraph 15 herein.
e. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
f. Successors. The covenants, terms, conditions, and restrictions of thi Easement
shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal
heirs, representatives, successors, and assigns and shall continue as a servitude running in
perpetuity with the Property. All such heirs, representatives, successors and assigns shall be
bound to every provision in this Easement, whether or net this Easement is 'referred to in the
instrument by which such heirs, representatives, successors or assigns acquire an interest in the
Property.
g, Termination of Rights and obligations A Party's rights and obligations under this
Easement tenninate upon transfer of the Party's interest in the Easennent or Property, except that
liability for acts or omission occurring prior to transfer shall survive transfer.
Page 9 of 1
h. C tions. The captions in this instrument have been inserted solely for
convenience of reference and are not a part of this instrument and shall have no effect upon
construction or interpretation.
i. Cooperation The Parties agree to cooperate in good faith with each other in the
administration of this Easement. Each Party r hereto will, upon the reasonable request of the other
party, execute, acknowledge, and deliver, or cause to be executed, acknowledged, d, and delivered,
such further instruments and documents as may be reasonably necessary in order to fulfill the
intents and purposes of this Easement.
j. Warranty of Authority Each person executing this Easement on behalf of a Party
represents and warrants that such person is duly and validly authorized to do so, has full right and
authority to enter into this Easement and all of its obligations hereunder.
IN WITNESS WHEREOF, Grantor and Grantee have executed this agreement effective
as of the date first above written.
GRANTOR:
Francis Collins
Date B:
GRANTEE: City of Alameda.
Date
B•
Its:
Page 10 of 1
)XIII ITS
Exhibit A: Legal Description and Map of Property [To be p rovided]
Exhibit B: Location and AreaMap [To be provided]
Exhibit C: Permitted Activities and Uses
Exhibit D: Prohibited Activities and Uses
Page 11 of 13
EXHIBIT C
PERMITTED ACTIVITIES AND USES
The following activities and uses are expressly permitted under this Easement, and
notwithstanding anything in this Easement to the contrary, such uses are not to be precluded,
prevented, or limited by this Easement.
1. Construction, development, and maintenance of open Space pursuant to, consistent with,
and as defined in, the 'Sep.t mber 20 10 Settlement Agreement between Grantor, Grantee, and
the CIC, and as specifically approved and authorized by Grantee;
2. Rights previously granted to third parties for any easements over, under or through the
Property.
3. Uses allowed by the general public of other similar parrs pursuant to the Park Rules.
Page 12 of 1
EXHIBIT I
PROHIBITED ACTIVITIES AND USES
Any activity on or use of the Property inconsistent with the purpose of this Easement is
prohibited in perpetuity, without limiting the generality of the foregoing, the following activities
and uses are inconsistent with the purposes of this Easement and are expressly prohibited in
perpetuity:
1, The legal or de facto subdivision, or other transfer or sale of any portion thereof or
interest therein, of the Property for any purpose; provided, however, that the following shall not
be prohibited by this paragraph: a the transfer or sale of all of the Property.
2. All development rights that are now or hereafter allocated to, implied, preserved, or
inherent in the Property are terminated and extinguished, any may not be used on or transferred
to any portion of the Property as it now or hereafter may be bounded or described, or to any other
property (whether adjacent or otherwise).
3. The eonstr etion, reconstruction, or replacement of any structure, facility, or
improvement on the Property, including (but not limited to residential, industrial, office, or other
buildings, underground or aboveground tanks, billboards, signs, advertising facilities, street
lights, utility structures or limes, or suer s rsterns or lines, except as permitted pursuant to
Exhibit C and approved and authorized by Grantee.
4. The establishment of any agricultural, residential, commercial or industrial uses on the
Property.
5. Except as may be required by a legal directive from any federal, state or local
gevermnental regulatory entity, the filling, dumping, excavating, draining, dredging, raining,
drilling, removing, or the exploring for or extracting of minerals, hydrocarbons, soils, sands,
gravel, rock or any other material on or below the surface of the Property.
6. The dumping or other disposal on the Property of wastes, refuse, or debris. (This
prohibition is not intended to prevent individuals using the Property for park, purposes f om
disposing of trash in receptacles provided on the Property for this purpose.)
7. Any uses or activities that would pollute or degrade the surface or sub surface waters on
or underlying the Property, or pollute or degrade the adjacent waterway.
P:\ LAMED 1 I I`LE EN'hE IIIBIT \PUBLI C ACCESS EASEMENTD
Page 13 of 13
Exhibit
Standard City Insurance Coverage Terms
CON N'ITIAL SETTLEMENT COMMUNICATION
PRIVILEGED AND CONFIDENTIAL
EXHIBIT 5: STANDARD D CITY INSURANCE COVERAGE TEAS
A.. COV AG
Contractor shall maintain the following insurance coverage:
(1) Workers' Compensation: Statutory coverage as
required by the State of 'Cali or ia.
(2) Liability: Commercial general liability coverage in the following
minimum limits;
Bodily Injury: $1,000,000 each occurrence
$2,000,000 aggregate all other
Property Damage: 1,000,000 each occurrence $2,000,000 aggregate If submitted,
combined single limit policy with aggregate limits in the mnounts of $2,000,000 will be
considered equivalent to the required minim r r limits shown above.
(3) Automotive:
Comprehensive automobile liability coverage in the following minimum
limits: Bodily i n j r: $1,000,000 each occurrence
Property Damage: 1,000,000 each occurrence or Combined Single Limit: $2,000,000
each occurrence
(4) Professional Liability;
Professional liability insurance which includes coverage. for the professional acts, errors
and omissions of Consultant in the amount of at least $2,,000,000.
(5) Pollution Prevention; Legal liability required for hazardous materials excavation in
the amount of 2,000,000 each occurrence.
P:IAI AME I L. I F,`ITLEMEN11L HIBrr STANDARD CITY INSURANCE COVERAGE TERM .dac
Exhibit
Form of Affordable Rental l H I r er ent
Recording requested b
And when recorded mail to.
Community Improvement Commission
of the City ofAlareda
e o Housing Authorit
01 Atlantic Avenue
Alameda, CA 94501
Attention: Executive Director
Exempt fi om recording fees pursuant to
Cal. Gov't Code 27383
AP1;
AFFORDABLE HOUSING AGREEMENT
(Rental Units with Commission Assistance)
This Affordable Housing Agreement ("Agreement") dated "Effective Date'), is
entered into between the COMMUNITY IMPROVEMENT COMMISSION OF THE CITY
OF ALAMEDA, a public body, corporate and politic, ex reising governmental functions and
powers and organized and existing under the Community Redevelopment Law of the State of
California Health Safety Code Section 33000 et seq.) ("Commission") and
a e o
fentityl ("Participant").
R R.C.TT A T.
The following recitals are a substantive part of this Agreement,
A. Participant is the owner of that certain real property located in the City of
Alameda, County of Alameda, State of California, more particularly described in Exhibit
attached hereto ("Property"),
B. Commission Resolution loo. 04-127, as amended by Commission Resolution No.
09-163, sets forth certain inclusionary requirements for development in the Business and
Waterfront Improvement Project and the West End Colum finny Improvement Project
("Commission Inclu ionar Policy"). The Property is located in the Business and Water fiiont
Improvement Project and is, therefore, subject to the Commission Inclusionary Policy.
C. The Commission, in its efforts to create affordable rental housing opportunities
for persons and families of very lour, low, and moderate income, entered into w owner
Participation Agreement between the Conunission and Participant dated (the
PA'I The OPA provides, among other things, for i Participant "s redevelopment of the
Property with rental units "Housi g Project"), including .nits to be available at an
1345 1 A 21942/003 9
affordable rent to persons and families of r low; ow, or :mbderatej income levels (each an
"Affordable Unit," and collectively, the "Affordable Units"); ii Commission's provision of
certain financial assistance to Participant in connection with the development of the Affordable
.its, and ili the establishment of certain covenants and restrictions to ensure redevelopment of
the Property in accordance with this Agreement, the Community Improvement Plan for the
Business and Waterfront Irnpro ement Project, and the Commission Inclusionary Policy. Under
the OPA, the Commission has provided Participant with a i s-al icabl loan1foregivable
1oa in the amount of DOLLARS
("Commission Loan"). Participant has executed a promissory note for the Commission Loan
("Commission Note"), which is secured by a deed of trust recorded against the Property Deed
of Trust").
D. Participant's continuous and faithful performance of all of Participant's obligations
hereunder for the full tern of this Agreement is a condition of forgiveness of the Commission
Loan and provision of the Commission assistance under the OPA. Pursuant to the OPA, In the
event of any default under this Agreement and following the expiration of all applicable notice
and cure periods, Participant agrees to repay to Commission all amounts owing under the
Commission Dote.
E. Commission and Participant desire by the execution of this Agreement to assure
the Property meets the requirements of California. Health and Safety Code Sections 33334.3 and
33413, and the requirements of the Commission Inclusionary Policy and the ,Affordable Units
remain affordable for a minimum of fifty -five gears following the date of recordation of this
Agreement.
NOW THEREFORE, the parties acknowledge and agree as follows:
ARTICLE 1. DEFINITIONS
1.01 "Affordable Rent" is the amount of rent considered as "affordable rent" for
f insert as ica y to apt income households, adjusted for family size
appropriate to the unit, less a utility allowance, pursuant to California Health and Safety Code
Section 50053 or any successor statute thereto. If the statute is no longer in effect and no
successor statute is enacted, the Commission shall establish the Affordable Rent for purposes of
this Agreement. For purposes of this Section 1.01 "adjusted for family size appropriate to the
unit" shall mean a household of two persons in the case of a one bedroom unit, three persons in
the case of a two bedroom unit, four persons in the case of a three bedroom unit, and five
persons in the case of a four-bedroom unit.
1.02 "Eligible Households" shall. mean households meeting the income restrictions as
set forth in Section 2.01.
1.03 "Area Median Income shall mean the median income for households in
Alameda County, California, as published from time to time by the United States Department of
Housing and Urban Development ("HUD") in a manner consistent with the determination of
median gross income e under Section 8 of the Limited States Housing Act of 1937, as amended, and
2
140v1B 21942/0039
as defined in Title 25, California Code of Regulations, tions, Section 6932. In the event that such
income determinations are no longer published by HUD, or are not updated for a period of at
least 18 months, the Commission shall provide the Participant with other income determinations
that are reasonably similar with respect to methods of calculation to those previously published
b HUD.
1.04 "Applicable Laws" means all applicable laws, ordinances, statutes, codes, orders,
decrees, rules, regulations, official policies, stand -ands and specifications (including any
ordinance, resolution, rule, regulation standard, official policy, condition, or other reasure of
the United Mates, the Mate of California, the County of Alameda, City o Alameda, or any other
political subdivision in which the Housing Project is located, and of any other political
subdivision, agency or instrumentality exercising jurisdiction over the Commission, Participant
or the Housing Project.
ARTICLE I RENT, INCOME AND OCCUPANCY RESTRICTIONS
2.01 Beat and Income Restrictions. All of the Affordable Units to be located on the
ropex shall be rented to e i b e e iio a income households
whose income does not exceed the limits set forth below;
a) [If :.Very Law Income ::thou insertJ Not less than of the Affordable Units
constructed on the Property shall be a a�lable to Eligible Households whose
gross income does not exceed fifty percent 0% of the Area Median
Income at an Affordable Rent.
b) Low Income:- :i Not less than of the Affordable Units
constructed on the Property shall be available to Eligible Households whose
gross income sloes not exceed eighty percent of the Area Median
Income at an Affordable Rent.
c) [If Moderate Income t e rose Not less than of the Affordable Units
constructed on the Property shall be available to Eligible Households whose
gross income sloes not exceed one hundred twenty percent 120 of the
Area Median Income at an Affordable sent.
-a 6rdab I p
[optional provisio,n-.."": ert
:Jns if 1 00% e. ro or delete if
mix d income, aka. i� i Notwithstanding the foreg Pa •tici ant lira in its sole
p y
reasonable judgment, elect to have a full time property inanager residing on the Property, in
which event one 1 of the Affordable Units may be designated as a resident manager's unit, and
such Affordable Unit shall not be subject to the above affordability restrictions so long as such
Affordable Unit is occupied by a full time on site manager for the Housing Project.
No less than one 1 person per bedroom shall be allowed. No more than two 2 persons
shall be permitted to occupy a studio Affordable Unit, no more than two 2 persons shall be
pefmitted to occupy a one l bedroom Affordable Unit, no more than four; persons shall b
permitted to occupy a two bedroom Affordable Unit, and no more than six 6 persons shall
3
13455030B 21942/0039
be permitted to occupy a three bedroom Affordable dable Unit. Commission may male exceptions
to the foregoing occupancy standards to the extent such exceptions are required by Applicable
Laws, and do not i ncrease Commission obligations or liabilities under this Ag reemen t, or
diminish or impair Commission's rights and remedies under this Agreement.
Not more than once per year, Participant may adjust rents in occupied Affordable Units
to the level allowed for the family size appropriate to the unit. Participant may adjust the rent
upon vacancy of an Affordable Unit to the level allowed for the family size appropriate to the
unit. Commission shall annually publish a list of all rent ceilings reflecting the annual
adjustments in the income limits for Eligible Households provided by the HUD and the State of
California Department of Housing and Community Development "HCW Participant must
notify each tenant and Commission in writing of any increase in monthly rent for a n Affordable
Unit at least thirty o days in advance of the effective rent adjustment date. The written notice
of rent increase provided to Commission shall indicate: 1 the rent adjustment for each
Affordable Unit; 2 the new rental amount for each Affordable U nit; an the e ffect ive date
o f the adjustment for each Affordable Unit. Failure to provide the notice required shall be
considered a default by Participant under this Agreement.
The determination of a status as an Eligible Household shall be made by participant prior
to initial occupancy of the Affordable Unit by such household and sh ,be subject to review and
ppro al by Commission. The income f all. persons residing in-the be
Unit shall be
considered for purposes of calculating the household income. Participant shall not d iscrimina te
against prospective tenants with qualified Public Housing Authority Section 8 certificates or
vouchers who are otherwise qualified. Participant shall notify Commission in writing whenever
the tenant in an Affordable Unit changes. The notice shall indicate the name and household size
of the tenant vacating the Affordable Unit. Once the Affordable Unit 1s reoccupied, Participant
shall notify Commission in writing of the new tenant's name, household size and income.
Immediately prior to the first anniversary d ate of the occupancy of an Affordable Unit by
an Eligible Household, and on each anniversary date thereafter, Participant shall re-- certify the
income of the occupants of suc Affordable Unit by obtaining a completed Tenant Income
Certification based upon the current income of each occupant of the .Affordable Unit. The
Tenant Income Certification shall be in the form attached hereto as Exhibit B. If an o ccupant of
an Affordable Unit no longer qualifies as an Eligible Household due to an increase in income
above the limitation set forth in paragra [Ins e (b) .r. �ar� p i of this
Section 2.01, the occupant may continue to occupy the former Affordable Unit; provided,
however, Participant may increase the rental rate for such former Affordable Unit to market rate
and Participant shall gent the next available comparable unit within the Housing Project i,e.,
same number of bedrooms and bathrooms) as an Affordable Unit. participant shall send written
notice to Commission with the address and bedroom bathroom mix of the A ffordable Unit
designated-by Participant as the replacement Affordable Unit.
In lieu of designating another comparable Housing Project unit as the replac=ent
Affordable Unit to meet the income requirements f paragraph rt (a) ,,.:.'(b) as
a ppropriate], of this Section 2 .01, participant may designate as an Affordable Unit an occupied
unit within the H ousing Project th at is not currently designated as an Affordable Unit if such unit
is then occupied by a tenant meeting the income requirements set forth in paragraph ins
1.345503vlB 21942!0039
4
(b dhd a of this Section 2.01, the event Participant makes such
substitution, Participant shall send written notice to the Commission with th address and
bedroo bathroom mix of the substituted Affordable Unit, along with the name of the occupant
and household size and inc of the household occupying the unit.
2.0 Desilmation of Affordable Units The initial designation an location of the
Affordable I Tnits is set forth in the Site Flan attached hereto as Exhibit C. The appearance,
materi f duality and amenities of the Affordable Units sh be comparable to the
market rate renta units within the Housing Project, Attached hereto as Exhibit D is a list o the
materials, amenities and finishes that will be featured in each of the units within the Dousing
Project, including both the market rate units and the Affordable Units,
2.0 Marketing and Leasing Program
Participant shall actively market rental of all units within the Housing Project, including
the Affordable Units. Prior to lease -up of the Affordable Units, Participant shall provide
Commission w ith a copy of its marketing program for the Housing Project, which shall include
marketing eting program for the Affordable Units "Affordable Units Marketing Program").
Commission shall review the Affordable Units Marketing program and either approve or request
modifications to the Affordable Units Marl eting Program within thirty days after receipt.
Participant shall provide monthly updates to the Affordable Units Marketing eting Program
commencing thirty 30 days after the d ate the Affordable Units Marketing Program is initially
approved by c mmissl n.
Participant 1s responsible for implementing the Affordable U nits Marketing Program
actively and in good faith. Commission may extend the requi
red marketing period in its
discretion if Participant delays implementation or otherwise fails .to comply with the Affordable
Units Marketing Program as approved by Commission.
ARTICLE 3. REPORTING TING I E I M T TTS FOR HOUSING PROJECT
3 .01 ting Requirements Participant shall submit an annual report and income
certification to the C ommission. The report, at a minimum, shall include;
a) The number of persons per Affordable Unit;
b) Marne of each Affordable Unit `tenant;
c) Initial occupancy date;
(d) Rent paid per Month; and
e) income per year.
Such information shall be reported to the Commission pursuant to Health and Safety
Code Section 33418, substantially in tho form of the Certification of Continuing Compliance
attached hereto as Exhibit E or in such other format as may be reasonably requested b
Commission.
Annual income recertificatio s shall also contain those docurfients used to certify
eligibility. Commission, from time to time during the term of this Agreement, may request
S
1 345503v I 2 1942/0039
additional or different information, if such information is required in order for the Commission
to comply with its reporting requirements, and Participant shall promptly supply such additional
or different information in the reports required hereunder. Participant shall maintain all
necessary boobs and records, including property, personal and financial records, in accordance
with requirements prescribed by the Commission with respect to all matters covered by this
Agreement. Participant, at such time and in such forms as Commission may require, shall
furnish to Commission statements, records, reports, data and information pertaining to matters
covered by this Agreement. Upon reasonable advance request for examination by Commission,
Participant, at any time during normal business hours, shall make available all of its records with
respect to all natters covered by this Agreement. Participant shall permit Commission to audit,
examine and make excerpts or transcripts from these records at Commission's sole cost.
The first annual report and annual income certification "Initial Deport" shall be
submitted to the Commission within thirty days of the date of the initial rental of all the
Affordable Units on the Property. Subsequent annual reports and annual income certifications or
re certifications shall be submitted to the Commission on the anniversary date of submittal of the
Initial Report.
3.02 Commission Approval of Lease Forms. Commission shall have the right to
review and approve Participant's forin of lease for the Affordable Units, including disclosures of
the affordability restrictions on the Affordable Units, prior to owner's use of such form.
3.03 Verification of Citizenship or Qualified Alien Status. Participant shall verify the
citizenship or qualified alien status of all adult tenants and all adult applicants for tenancy of the
Affordable Units as required under the Personal Responsibility and Work opportunity
Reconciliation Act of 1996 (Public Law No. 104 -193, 8 U.S.C. 1621. Participant may charge
new tenancy applicant (but not an existing tenant) a reasonable eligibility verification fee only
if approved in writing by the Commission. on an annual basis at the time of the annual income
recertification, Participant shall verify the citizenship or qualified alien status of all Affordable
Unit tenants.
Participant shall verify the citizenship or qualified alien status by causing the tenant or
applicants for tenancy of all Affordable Units to complete and sign under penalty of perjury the
HCD Benefit Status Form 1 (2198) or such other form provided by HCD for this purpose. The
signed forms shall be retained by Participant and shall be disclosed to Commission upon request.
All eligibility shall be conducted without regard to race, greed, color, gender, religion,
age, disability, familial status or national origin of the tenant or applicant for tenancy.
ARTICLE 4. PROVISION of SERVICES AND MAINTENANCE PROPERTY
4.01 Maintenance During the term of this Agreement, Participant shall maintain, or
cause to be maintained, the Property, including all improvements thereon, in a manner consistent
with the provisions set: forth therefor in the Alameda. Municipal Code, and shall keep the entire
Property fryec from any accumulation of debris or wastc materials prior to and after construction,
6
140v1B 21942/0039
If, at any tine, Participant fails to maintain the Property, and has either failed to
commence to cure such condition or to diligently prosecute to completion the condition or the
condition is not corrected after expiration of sixty days from the date of written notice from
the Commission to the Participant, Commission may perform the necessary corrective
maintenance, and Participant shall pay' such costs as are reasonably incurred for such
maintenance, The Commission shall have the right to place a lien on the Property should
Participant not reimburse Commission for such costs within sixty O days following
Commission's written demand for reimbursement of sUch costs. Participant, on behalf of itself,
its heirs, successors and assigns, hereby grants to Commission and its officers, employees and
agents, an irrevocable license to enter; upon the Property to perform such maintenance during
normal business hours after receipt of written notice from Commission and Participant's failure
to cure or remedy such failure within sixty 60 days of such notice. Any such entry shall be
made only after reasonable notice to Participant, and Commission shall indemnify and hold
Participant harmless from any claims or liabilities pertaining to any such entry by Commission.
Failure by Participant to maintain the Property in the. condition provided in this Article 4 may, in
Commission's reasonable discretion, constitute a default under this Agreement.
ARTICLE 5. NO 'TRANSFER
5,01 Prohibition. Except with respect to Permitted Transferees as defined below),
Participant shall not male any total or partial sale, transfer, conveyance, encumbrance to secure
financing, assignment or lease of the whole or any part of the Property r the Dousing Project
without the prior written approval of the Commission, which approval shall not be unreasonably
withheld.
5.02 Permitted Transfers. Notwithstanding any other provision of this Agreement to
the contrary, Commission approval of an assignment or transfer of this Agreement, the
Commission Loan, the Commission Note, the Decd of Trust, the oPA, or conveyance of the
Property or any part thereof shall not be required in connection with any of the following the
"Permitted Transfers"):
(a) The lease of Affordable Units to Eligible Households.
(b) Assignments for financing purposes, and any subsequent transfer to the
lender providing such financing by foreclosure or deed in lieu of foreclosure
thereunder, subject to such financing being considered and approved by the
Commission as provided in the oPA.
(c) Transfer of the Property and Dousing Project to are affiliate entity which
controls, is controlled by or under common control with Participant..
(d) In the event of an assignment by Participant pursuant to subparagraph c not
requiring the Commission's prior approval., Participant nevertheless agrees
that at least thirty o days prior to such assignment or transfer it shall give
written notice to the Commission of such assignmcnt or transfer and that
7
1345503v B 2194210039
such transferee shall be required to assume Participants obligations under
this Agreement, the Commission Dote, the Deed of Trust and the oPA
pursuant to a written assignment and assumption, agreement in form
reasonably acceptable to Commission counsel.
(e) A transfer as otherwise permitted pursuant to the oPA.
5.03 Commission Consideration of Requested Transfer. The Commission agrees that
it will not unreasonably withhold approval of a request made pursuant to this Article 5 provided
(a) the Participant delivers written notice to the Commission requesting such approval, and b
the proposed assignee or transferee possesses comparable operational experience and capability,
and comparable net worth and resources, as Participant, and c the assignee or transferee
assumes the obligations of the Participant under this Agreement pursuant to a written assignment
and assumption agreement in form reasonably acceptable to the Commission counsel. Such
notice shall be accompanied by evidence regarding the proposed assignee's or purchaser's
qualifications and experience and its financial commitments and resources sufficient to enable
the Commission to evaluate the proposed assignee or purchaser pursuant to the criteria set forth
herein and other criteria as reasonably determined by the Commission. The Commission shall
approve or disapprove the request within forty -five days of its receipt of the Participant's
notice and all information and materials required herein. In no event, however, shall the
Commission be obligated to approve the assignment or transfer of the Commission Loan,
Commission Note or Deed of Trust, except to an approved transferee or assignee of the
Participant's rights in and to the Property and Mousing Project,
ARTICLE .loo DISCRIMINATION
Participant covenants, by and for itself and any successors in interest, that there shall be
no discrimination against or segregation of any person or group of persons on account of ally
basis listed in subdivision a or d of Section 12955 of the Government Code, as those bases are
defined in Sections 12926, 12926.1, subdivision m) and paragraph 1 of subdivision p of
Section 12955, and Section 12955.2 of the Government Code, 1n the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Participant, itself or an
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, subleases or vendees in the Property.
ARTICLE 7. NONIIISCRMINATION AND NONSEGREGATION CLAUSES
All deeds, leases or contracts made relative to the Property, the improvements ent thereon or
any part thereof, shall contain or be subject to substantially the following nondiscrimination and
non segregation clauses:
a) In deeds:
1, "The grantee herein covenants, by and for himself or herself, his or
her heirs, executors, administrators, and assigns, and all persons
1345503v I B 2.194 2/0039
claiming under or through them, that there shall be no
dis n' m inatio against or segregation of any person or group of
persons on any basis listed in subdivision a or d of Section
12955 of the Government Code, as those bases are defined in
Sections 12926, 12926.1, subdivision and paragraph 1 of
subdivision p of Section 12955, and Section 12955.2 of the
Government Code, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein conveyed, nor
shall the grantee, himself or herself or any person claiming under or
through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees,
subtenants, subleases or vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
2. Notwithstanding ithstanding paragraph 1,, with respect to familial status,
paragraph 1. shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the Government Code, if
applicable. With respect to familial status, nothing in paragraph 1.
shall be construed to affect Section 51.2, 5 1. 51.10, 51.11
and 799.5 of the Civil Code relating to housing for senior citizens.
Subdivision d of Section 51 and Section 1360 of the Civil Code
and subdivision (n), (o), and p of Section. 12955 of the
Government Code shall apply to paragraph 1.
(b). I leases: "The lessee herein covenants, by and for himself or herself, his or
her heirs, executors, administrators and assigns, and all persons claiming
under or through him or her, and this lease is made and accepted upon and
subject to the following conditions:
1. That there shall be no discrimination against or segregation of any
person or group of persons on account of any basis listed in
subdivision a or d of Section 12955 of the Government Code, as
those bases are defined in Sections 12926, 12926.1, subdivision m
and paragraph 1 of subdivision p of Section 12955, and Section
12955,2 of the Government Code, in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the land herein
leased, nor shall the lessee, himself or herself or any person
claiming under or through him or her, establish or permit any such
pra ti o or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants,
lessees, subleases, subtenants or vendees in the land herein leased."
2. Notwithstanding paragraph 1,, with respect to ftumili l status,
paragraph 1, shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the Government Code, if
13403v tB 2194210039
applicable. With respect to familial status, nothing in paragraph 1.
shall be construed to affect Sections 51.2, 51.3 5t.4 51.10, 51.11
and 799.5 of the Civil Code, relating to dousing for senior clti ens.
Subdivisions d of Section 51 and Section 1360 of the Civil Code
and subdivision n, and P of Section 12955 of the
Government Code shall apply to paragraph 1.
(c) In contracts: "There shall be no discrimination against or segregation of any
person or group of persons on any basis listed in subdivision or d of
Section 12955 of the Government Code, as those bases are defined in
Sections 12926, 1 2926.1, subdivision and paragraph 1 of subdivision
(p) of Section 12955, and Section 12955.2 of the Government Code, in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
land, nor shall the transferee, himself or herself or any person claiming under
or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subleases, subtenants or
ven eer in the land." The contract shall further specify that the foregoing
provisions shall be binding on the contracting party or parties, any
subcontracting party or parties or other transferees under the instrument.
AR'T'ICLE 8. NO IMPAIRMENT of LIEN
No violation or breach of the covenants, conditions, restrictions, provisions or limitations
contained in this Agreement shall defeat or render invalid or in any way impair the lien or charge
of any mortgage, deed of trust or other financing or security instrument; provided, however, that
any successor of Participant to the Property and Housing Project shall be hound by such
covenants, conditions, restrictions, limitations and provisions, whether such`]. successor's title was
acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
ARTICLE 9. DURATION
The covenants contained in Articles 2, 3 and 4 of this Agreement shall be deemed to run
with the Property and Horsing Project until the date which is fifty -five years following the
Effective Date. The covena is against discrimination contained to i- ficles 6 and 7 of this
Agreement shall Arun with the land in perpetuity.
ARTICLE 10. SUCCESSORS AND ASSIGNS
The covenants contained in the Agreement shall be binding upon Participant and its heirs,
successors and assigns, and such covenants shall run in favor of the Commission and its
successors and assigns for the entire period during which such covenants shall be in force and
effect, without regard as to whether the Commission 1s or remains an owner of an land or
interest therein to which such covenants relate. In the event of any breach f any such
covenants, or breach of any of Participa .t's obligations under this Agreement, Commission and
its successors and assigns (which may include the City of Alameda shall have the right to
10
1345503v 1 B 21942!0039
exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or
other proper proceedings to enforce the curing of such breach. The covenants contained in the
Agreement, without regard to technical classification and designation, shall be for the benefit of
and shall be enforceable only by the Commission, and its successors and assigns.
ARTICLE 11, SUBORDINATION DINATION AGREEM NT
This Agreement shall have priority over the liens of all mortgages, deeds of trust and
other liens (other than the lien for current, unpaid property taxes) and Participant shall cause all
such mortgagees, deed of trust beneficiaries and other lien holders to execute and deliver to
Commission for recordation in the official Records of Alameda County, a subordination
agreement, in a form reasonably acceptable to Commission, subordinating such mortgages, deeds
of trust and other liens to this Agreement thereby ensuring the priority of this Agreement over all
such mortgages, deeds of trust and other liens.
ARTICLE 12. DEFAULT
Any failure by Participant to perform any term or provision of this Agreement shall
constitute a "Default" 1 if Participant does not cure such failure within thirty o days
following written notice of default from Commission, or 2 if such failure is not of a nature
which can be cured within such thirty o day period, Participant does not commence
substantial efforts to cure the failure within thirty o days and thereafter prosecute to
completion with diligence and continuity the curing of such failure. Any notice of default given
under this Agreement shall identify the nature of the failure in performance which Commission
elainns constitutes the Default and the manner in which such Default may be satisfactorily cured.
Any failure or delay by Commission in asserting any of its rights or remedies, including -specific
performance, as to any Default shall not operate as a. waiver of any Default or of any such rights
or remedies or deprive Commission of its right to institute and maintain any actions or
proceedings which it may deem necessary to protect, assert or enforce any such rights or
remedies,
A RTIC L E 13. NOTI E S, D AND COMMUNICATIONS
Any approval, disapproval, demand, document or other notice to be provided under this
Agreement shall be given in writing and shall be sent: a for personal delivery by a delivery
service that provides a record of the date of delivery, the individual to whom delivery was made,
and the address where delivery was made; b by first -class certified United States maxi, postage
prepaid, return receipt requested; or c by a nationally recognized overnight courier service and
rnarlced for next clay business delivery. All notices shall be addressed to the patty to whom such
notice is to be given at the property address stated herein or to such other address as a party may
designate by writtcn notice to the other. Any written notice, demand or communication shall be
deemed received: a immediately if delivered by personal deliver as provided hereinabove;
b) on the third day from the date it is postmarked if delivered by first -class mail, postage
prepaid, return receipt requested; and c on the next business day if sent via nationally
recognized overnight courier and mark mark-e for next clay business delivery. Notices 'sent by a
party's attorney on behalf lfi of such party shall be deemed delivered by s cb party.
11
1345 503v I I 21. 942/0039
To Commission; Community improvement Commission
of the City of Alameda
co Housing Authority
701 Atlantic Avenue
Alameda, CA 94501
Attention: Executive Director
With a copy to: City of Alameda
2263 Santa Clara. Avenue
Alameda, CA 94501
Attention. City Attorney
To Participant
With a copy to:
Attention:
Attention:
ARTICLE 14. ATTORNEYS' F LA ES
In any action or proceeding which either party brings against the other to enforce its
rights hereunder, the unsuccessful party shall pay all costs incurrod by the prevailing party,
including reasonable attorneys" fees, wbich amounts shall be a part of the judgment in any action
or proceeding.
ARTICLE 15. MISCELLANEOUS
Each party agrees to cooper #ate with the other in the implementation and administration of
this Agreement and, in that regard, shall execute any and all documents which may be
reasonably necessary, helpful, or appropriate to carry out the purposes and intent of tills
Agreement. This Agreement may be signed in multiple counterparts which, when signed by all
parties, shall constitute a binding agreement. The words "include" and "including" shall be
construed as if followed by the words "without limitation." All exhibits and attachments hr reto
are incorporated by reference as though fully restated herein. This reement shall be
interpreted as though prepared jointly by bona parties, and shall be construed in accordance with
and be governed by the lags of the State of California. If any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired thereby. A waiver by either party
12
13455030B 2f942/0039
of a breach of any of the covenants, conditions or agreements hereunder to be performed by the
other party shall not be construed as a waiver of any succeeding breach of the same or other
covenants, agreements, restrictions or conditions hereof. No waiver by Commission of any of
the conditions hereof shall be effective unless in writing expressly identifying the scope of the
waiver and signed on behalf of an authorized official of Commission. Any alteration, change or
modification of r to the Agreement, in order to become effective, shall be made in writing and
in each instance signed on behalf of each party hereto.
IN WITLESS WHEREOF, the Commission and Participant have caused this Agreement
to be executed on their behalf by their respective officers thereunto duly authorized, on the
Effective Date first above written.
RECOMMENDED FOR APPROVAL:
Michael T. Pucci, Executive Director
Housing Authority
COMMUNY17Y IMPROVEMENT COMMISSION
F THE CITY OF A AME A, a public body
corporate and politic
Executive Director
[Signature must b notarized]
APPROVED AS TO FORM:
City ttrneyGeneral Counsel
1
13455030B 21942/0039
PARTICIPANT::
B.
Print Name:
Its;
Bar:
[Signature must be otarizee1J
Print Larne:
Its
[Signature must be nolan ed]
1
134,5503v 1B 21942/0039
NOTARY ACKNOWLEDGMENTS
[TO BE INSERTED]
1345503 v I B 21942/0039
EXHIBIT
Description Property
Exhibit A
1345503viB 2194210039
EXHIBIT B.
Tenant Income Certification.
Project: Date:
Affordable Units: 0% of Median Income
of Median Income
120% of Median Income
Address /Unit Number: Rent:
Tenant /Household Name: Date of Lease:
Size of Household: Expiration:
Total Household Income: per year
The following list includes each member of the household and their income. Attached are
federal or state income tax returns for the most recent tax year, current stubs from paychecks or
ether evidence of the income of each incorrre- producln. g member of the household.
Name of Source of Income
Household Social Security Annual Name of
Member Relationship Age Number Income Employer
1 We the undersigned have read and answered fully, frankly and personally each of the above
questions under penalty of perjury and do hereby swear they are true.
Head of Household Date participant/ A Date
Exhibit I
1401 21942/0039
EXHIBIT
Site Flan
[To be inserted]
Fait C
13 45 50 3 v 1. T 2194210039
0*1044 439 I J-1 Aft
Materials,, Amenities and Finishes
[To be inserted]
Exhibit
1345503vlB 21942/0039
EXHIBIT
CERTIFICATION of CONTINUING COMPLIANCE
Project:
Total Affordable Housing Units in Project:
Very Low Income Units (not to
exceed 0% of Median Income)
Low Income Units (not to
exceed 0% of Median Income):
Moderate Income Units (not to
exceed 120% of Median Income):
Date;
The Participant, -in accordance with the Affordable Housing Agreement, dated
does hereby certify to the Community Improvement Commission slon of the City of Alameda that
during the preceding year, the units identified on the following pages were occupied in
accordance with the Affordable Housing Agreement and does hereby farther certify that the
representations set forth herein are true and correct to the best of the undersigned's knowledge,
ledge,
Signed:
Nuticlp nt Agent
[See Attached]
.habit
Date:
1345503YIB 21942/0039
ANNUAL COMPL REPORT
Project; Date:
Very Low Income Units (Not to Exceed o of Median Income}
Annual
Household Number in
Unit No. /Address, Type Tenant Name Income Household
(Attach additional sheets as required.)
Si
Participant Agent
Exhibit
Date:
Monthl
Rent
140IB 2194210039
ANNUAL COMPLIANCE REPORT
Project: Date:
Low Income nits Not to Exceed 80 of Median Incon�
Annual
H ousehold Number in
Unit No. /Address Type Tenant Name Income Household
(Attach additional sheets as required.)
Signed: Date:
Participant Agent
Exhibit
Monthly
Rent
134031B 2194210039
ANNUAL COMPLIANCE REPORT
Project:
Date:
Moderate Income Units (Not to Exceed 120% of Median Income)
Annual
Household Number in
Unit Igo. /Address Type. Tenant Name Income Household
,Attu, additional sits as required.)
Signed: Date:
Participant Agent
Exhibit
Monthly
Rent
1345503YIB 21942/0039
Exhibit
Form o Affordable For Sale Housing Agreement
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Community Improvement Commission
of the City of Alameda
c/o Housing Authority
70 Atlantic Avenue
A lameda, California 945
Attention: Executive Director
(Space Above This Line for Recorder's Use Only)
[Exempt from recording fee per Goer. Code 27383]
AFFORDABLE BL HOUSING AGREEMENT
(For -Sale Units with Connnission Assistance)
This Affordable Dousing Agreement ("Agreement”) dated is entered
into between the COMMUNITY IMPROVEMENT COMMISSION of THE CITY of
ALAME A, a public body, corporate and politic, exercising go emmenta.l Functions and
powers and organized and existing under the Community Redevelopment Law of the State of
California Hea Safety Co Section 33000 et seq.) "Commission" and
a ..TJ_j e t p e o f erntit 1___.._._J rti ip Ant"
ECIT AU
The following recitals are a substantive part of this Agreement.
A Participant is the owner of that certain real property located in the City o
A lameda, County of Alameda., State of California, more particularly described in Exhibit A.
attached. hereto Property").
B Commission ion Resolution loo. 04-127, as amended by Commission Resolution
No. 09 -163, sets forth certain inclusionary requirements for development in the Busines s and
Waterfront hnpro ement Project and the West End Community Improvement ent Project
"Commission Inclusi n .r Policy" The Property is located in the Business and WaterfTont
Improvement Project and is, therefore, subject to the Commission hiclusionary Policy.
C. The Commission, in its efforts to create affordable for -sale housing opportunities
for persons and families of very low, low, and moderate income, entered into an owner
Participation Agreement b etween the Commission and Participant dated (the
"oPA" The OPA provides, among other things, for i Participant's redevelopment of the
Property w for-sale units ("Project") including units to be available at an
affordable housing cost to persons and families of .[insert a very 16w, l and/or
moderate incon ie levels (each, an "Affordable Unit," and collectively, the "Affordable
Units"), (ii) Commission's provision of certain financial assistan e to Participant in connection
with the development of the Affordable Units, and (iii) the establishment of curtain covenants
and restrictions to ensure redevelopment of the Property in accordance with this Agreement, the
Community Improvement Plan for the Business and Waterfront hnpro ement Project, and the
1345 80 1vI B 21942/0039
Commi Incl sionary Policy. Under th e oPA, the Commission has provided Participant with
a [inSert" le .:.Iod c t] in amount of
D OLLARS Commission Loan"
Participant has executed a promissory note for the Commission Loan ("Commission mission Note
which is secured by a deed of trust recorded against the Property ("Deed of Trust").
D Participant's performance of all of its obligations under this Agreement i
condition of forgiveness of the Commission Loan acid provision of the Commission assistance
under the oPA. Pursuant to the OPA, in the event of any default under this Agreement and
following the expiration of all applicable notice and cure periods, Participant agrees to repay to
Commission all amounts owing under the Commission Mote.
E Commission and Participant desire by execution of this Agreement to assure that
the Property meets the requirements of California Health and Safety Code Sections 33334.3 and
33413 and the requirements of the Commission fnclusionary Policy, and that the Affordable
Units remain affordable for a minimum of fifty -nine years following the elate of recordation
of this Agreement.
IoW, THEREFORE, Participant and Commission agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the meanings set forth in this Article 1:
A. "Agreement" means this Affordable Housing Agreement between the Participant
and Commission.
B "Affordable Housing Cost" shall be as defined in Health and Safety Code
Section 002.b, or any successor statute thereto. If the statute is no longer in effect and n
successor statue is enacted, the Commission shall establish the Affordable Housing Cost for
purposes of this Agreement.
C. "Affordable Unit" means each of the affordable units that are to be
sold to and occupied by Eligible Households only pursuant to Article 2.
D. "Applicable Law means all laws, ordinances, statutes, codes, rules, regulations,
orders and decrees, of the United Mates, the Mate of California, the County of Alameda, the
City, and of any other political subdivision, agency or instrumentality exercising jurisdiction
over Commission, Partici ant, the Property or the Project.
E "City" means the City of Al ameda, a municipal corporation.
F. "Commission" means the Colnmunity li nprover cnt Commission of the City of
Alameda, a public body, corporate and politic.
G. "Commission Intl si n ry Policy is defined in Recital B.
14011 2194210039
above.
H. "Effective Date" means the effective date of this Agreement, as first set forth
I. "Eligible household" means a person or household i meeting the definition of
"Moderate Income Household, "Low Income Household, or "Very Low Income Household,
as applicable, under this Article 1; and (ii) meeting Participant's standard criteria for determining
eligibility for occupancy, which may include an evaluation of the applicant's ability to pay its
mortgage, employment status and credit history, These standard criteria may vary from time to
tine, but must be uniformly applied at all times.
J. "Project" rs defined in Recital C.
K. Inclusionary Ownership Guid lines" 1s defined in Section 2.1 E. 2.
L. "Low Income Household" roans a household whose annual income does not
exceed the qualifying limits sot for "lower income households in Section 50079.5 of the
California Health and Safety Code, or any successor statute thereto.
M. "Mart Rate Units" means units in the Project, the sale and occupancy of which
are not regulated by this Agreement,
I. "Moderate Income Household" means a household whose annual income does
not exceed the qualifying limits sot for "persons acrd f mill of low r m leer to ilicome" in
Section 50093 of the California Health and Safety Code, or any successor statute thereto.
o. "Participant" moans
P. "Property" i defined in Recital A.
,a
Q. "Project Approvals" means and includes all Commission and City approvals
required for development of the Project including the plans, drawings and related design or land
use approvals and any conditions of approval imposed by City as set forth in Section 4. 1.
R. "Project Units "t means the l Marl et Rate Units and the Affordable Units.
S. "Resale Restriction" tion is defined in Section 2. LEA.
T. "Schedule" is defined in Section 2. I.D.
U. "Tenn" is defined in Section 4.3.
V. "Very Low Income Household" means a household whose annual income does
not exceed the qualifying limits set for "very low income households" in Section 50105 of the
California Health and Safety Code, or any successor statute thereto.
134580 1 v I B 21942/0039
ARTICLE 2
PROJECT TNCLUSIONARY REQUIREMENT
2.1 Affordability lecuirements and Restrictions.
A. Participant shall construct Affordable Units in the Project, which
will be sold to and occupied by Eligible Households, as follows: [Insert as applicable:
Affordable Units shall be sold to and occupied by .moderate Income Households,
of the Affordable Units shall be sold to and occupied by Low Income Households, and
of the Affordable Units shall be sold to and occupied by Very .ow Income Households].
B. The Annual Household Income shall be considered for purposes of calculating the
applicable income of the Eligible Household. "Annual Household Income" means the combined
11 gross income" for a person or family living in a dwelling unit as calculated pursuant to Section
6914 of Title 25 of the California Code of Regulations.
C. The Affordable Units shall be consistent with the architectural character, size,
floor plans and location shown for the rinser t applicable d r i p: type.] identified
in the Project Approvals. Affordable Units shall be comparable in exterior appearance and
overall quality of construction to Market Rate Units in the Project.
D. Participant shall construct the Market Rate Units and Affordable Units according
to the schedule attached a Exhibit B and incorporated herein ("Schedule").
dole").
E. Participant shall make a written designation to Commission, at the time the final
subdivision mnap for the Property is recorded, of the units that shall be the Affordable Units,
which designation shall be consistent with the terms of this Agreement. The total number of
Affordable Units being offered for sale in accordance with this Artier 2 shall be as required b
subsection 2.1,A. above. During the Teem of this Agreement, the Affordable Units shall be
subject to all of the requirements of this Agreement, including without limitation the following
additional restrictions and requirements:
I. The Affordable Units shall only be sold to and be occupied by Eligible
Households, as specified in subsection 2. LA.. Each Affordable Unit shall only be sold to and be
occupied by an Eligible Household at a price that does not exceed the Affordable Housing Cost
for such a household, subject to prior approval of the Commission as further described below.
2. Each Affordable Unit shall only be sold to an Eligible Household
approved by Commission in accordance with this Agreement, the Commission Inelusionar
Policy, r, and the City's "Inclusionary Housing Program Buyer Selection Guidelines," attached
hereto as Exhibit C, as they may be amended from time to time (the "Ineluslonar Ownership
Guidelines"). At least t in 3 calendar days prior to entering into any agreement with a
prospective buyer related to any proposed sale or other transfer of any ,Affordable Unit during
the Terra, Participant shall subi.it to the Commission: a a copy of the proposed written
agreement of purchase and sale; b an application for Commission approval of the prospective
purchaser /transferee in a form to be provided by the Commission, along with such supporting
documentation as Commission may require to ocument the proposed purchaser's /transferee's
status as an Eligible Household, including the prospective purchaser's /transferee's payroll stubs
_r
134580tvIB 2194210039
and most recent income tax return, and to otherwise determine. compliance with the terms of this
Agreement, including the requirement that the sales price for each Affordable Unit not exceed
the Affordable Housing Cost for the purchasing Eligible Household; and c the income
certification to be provided to any lender ruling a loan On the Affordable Unit. Participant shall
bear all costs and expenses associated with such certification and eligibility determination
process. within thirty calendar days from receipt of the documentation, C rr missi n shall
render a decision of eligibility or nneligibility. Provided the prospective purchaser /transferee
qualifies as an Eligible Household, the purchase price of the Affordable Unit meets the definition
of Affordable Mousing Cost, and the sale or transfer complies with the Commission Inclusinary
Policy and the Inelusi nary Ownership Guidelines, the Commission shall within such thirty (30)
calendar days issue a letter of approval confirming that the proposed transaction complies with
the requirements of this Article 2. If the prospective purc aser transferee does not qualify as an
Eligible Household, the purchase price of the Affordable Unit does not meet the definition of
Affordable' Housing Cost, or the sale or transfer does not comply with the Commission
Inelu ion ry Policy or the Inclusi nary Ownership Guidelines, the Commission shall so notify
the Participant in writing, within such thirty calendar days, stating the basis for its
determination in reasonable detail and the Participant shall not sell the Affordable Unit to such
non Eligible Household.
3. THERE SHALL BE NO SALE OR OTHER TRANSFER OF AN
AFFORDABLE UNIT" WITHOUT ISSUANCE OF A LETTER OF APPROVAL BY
COMMISSION THAT THE PURCHASER/TRANSFEREE IS AN ELIGIBLE HOUSEHOLD,
THE PURCHASE PRICE OF TE AFFORDABLE UNIT MEETS THE DEFINITION OF
AFFORDABLE HOUSING COST FOR SUCH PURCHASER TRANSFEREE AND THE
CATEGORY OF SUCH AFFORDABLE UNIT, AND THE SALE OR TRANSFER
COMPLIES WITH COMMISSION'S INCLUSION RY POLICY AND THE
INCLUSIONARY OWNERSHIP GUIDELINES. ANY SALE OR OTHER TRANSFER. OF
THE AFFORDABLE UNIT IN VIOLATION OF THIS AGREEMENT SHALL BE VOID.
4. EACH PURCHASER OF AN AFFORDABLE UNIT SHALL ENTER
INTO AND RECORD AT THE CLOSE OF ESCROW AN AFFORDABILITY,
RESTRICTIONS ON RESALE AND OPTION TO PURCHASE AGREEMENT ("RESALE
RESTRICTION"), IN A FORM S UB S TA.NTIALLY SIMILAR TO EXHIBIT D. ATTACHED
HERETO, SUPPLIED BY AND APPROVED BY COMMISSION, AND FOR THE BENEFIT
OF COMMISSION. UPON RECORDATION OF THE RESALE RESTRICTION: THIS
AGREEMENT SHALL HAVE NO FURTHER FORCE OR EFFECT AS AN
ENCUMBRANCE AGAINST THE AFFORDABLE UNIT ENCUMBERED BY THE RESALE
RESTRICTION; AND E PARTICIPANT SHALL HAVE NO FURTHER OBLIGATIONS
OR LIABILITIES WITH RESPECT TO THE AFFORDABLE UNIT ENCUMBERED BY THE
RESALE RESTRICTION, INCLUDING WITHOUT LIMITATION ANY RESPONSIBILITY
FOR COMPLIANCE BY THE BUYER OR ITS SUCCESSORS WITH THE TERMS AND
CONDITIONS OF THE RESALE RESTRICTION SIGNED BY PURCHASER, PROVIDED
THAT PARTICIPANT HAS COMPLIED WITH THE TERMS OF THIS AGREEMENT.
2,2 Maintenance and Management During the Terin, the Property and the Project shall be
maintained by the Homeowners Association farmed to manage, Operate and maintain the Project.
The maintenance Obligations will include maintenance of the improvements and landscaping.
-5-
134580tvIB 2194210039
Participant agrees to maintain the Affordable Units in a clean and orderly condition and in good
condition and repair, including the maintenance of improvements and landscaping, and to keep
the Affordable Units free from accumulation of debris and waste materials, until the close of
escrow of the Affordable Units. Upon the sale and close of escrow on each Affordable Unit, the
Eligible Household which purchased the Affordable Unit will be a member of the Homeowners"
Association and will be responsible for the payment of Homeowners' Association assessments as
provided in the Covenants, Conditions and restrictions f, for the Project. Participant
represents and warrants that such Homeowners' Association assessments will equal
approximately ih d] per Afford Unit per year, subject to increases as
provided for in the C& rs.
ARTICLE 3
MARKETING
G
3.1 MarketinQ and Sales Pro aram and 1 Marl etin l enorts.
A. On or before issuance of the building permit for the first hone to be developed on
the Property as shown on the Schedule, Participant shall design and deliver to the Cit Housing
Authority's Executive Director a marketing eting and sales plan for the Affordable Units. Such plan
shall conform to the tens of this Agreement, the Commission Inclusionary Policy, and the
Inclusionary ownership Guidelines, and shall be subject to the Housing Authority's Executive
Director's review and approval, which approval shall not to be unreasonably withheld or delayed.
B. To the extent permitted by lave, the marketing and sales program for the
Affordable Units referenced in subsection A. above shall give preference in the sale of the
Affordable Units according t a point syst= that allots one preferen pert to persons and
households who meet each of the following criteria: 1 persons who live or morl in the City of
Alameda-, 2 persons who are first -time buyers; households containing four or more
individuals; acrd 4 such other criteria established by the Commission. For persons and
households who match more than one of these criteria, preference points shall be aggregated.
3.2 Verification of Citizenship or Qualified Alien Status. At the time of sale of an
Affordable Unit, Participant shall verify the citizenship or qualified alien status of all adult
buyers as required under the Personal responsibility and Work opportunity reconciliation Act.
of 1996 (Public Lave No. 10 -193, 8 U.S.C. 1621). Participant wall verify the citiensbip or
qualified alien status by causing the applicants for purchase to complete and sign under penalty
of perjury the HCD Benefit Status Form 1 (2198) or such other form provided by HCD for this
purpose. The signed forms shall be forwarded by Participant to Commission.
3.3 Restrictions on Sales of Affordable Units. Participant shall not sell the Affordable Units
to any of the following: a any partner, officer, shareholder or employee of Participant or any
Family Member (defined below) of any partner, officer, shareholder or employee of Participant;
b) any member of the City Council or the Commission or any member of any City Board or
Commission; and c any City or Commission employee who exercises any function or
responsibility in connection with the Property or who has, or whose Family Member (defined
below) has, an economic interest in the Property pursuant to the provisions of the Political
Reform ,Act, Government Code section 87100 et sect, "Family Member" shall mean the spouse,
1345801 1 B 21942/0039
state registered d rn i rt r, or child of the individual at issue or the individual's or his or
her spouse's or domestic partner's parent, grandparent, brother, sister, aunt,, uncle, niece or
nephew.
3.4 Effect of Article 3. This Article 3 shall terminate and be of no further force and effect as
to Participant upon the flat to occur of: a the last day of the Term; orb with respect to each
Affordable Unit, the closing of the sale by Participant of, and the transfer of title to, the
Affordable [,Tait pursuant to Article 2 above.
ARTICLE
GENERAL PI O ISIONS
4.1 Conditions of Approval This Agreement is intended to give effect to the Commission
Inclusion.ary Policy and Condition of Approval loo. I imposed by the City pursuant to the
City Council Ordinance In the evert of any conflict between this Agreement and the
Commission Inclusionary Policy, this Agreement shall prevail.
4.2 Notices. Notices required to be given to Commission or to Participant shall be given b
hand delivery, recogni
zed overnight courier or certified mail, return receipt requested, to the
following addresses, or to such other address(es) as a party may designate from time to time b
written notice to the other:
To Commission: Community Improvement Commission
of the City of Alameda
o housing Authority
701 Atlantic Avenue
Alarmed, CA 94501
Attention: Executive Director
With a copy to: City of Alameda
2263 Santa Clara Avenue
Alameda, CA 94501
Attention: City Attorney
To Participant
With a copy to;
1 345 01 v l B 1 942/0039
Attention:
Duration, The covenants set forth herein on the Affordable Units shall be covenants
running with the land and shall inure to the benefit of Comrflission and its successors and
assigns, and shall be enforceable by Commission and its successors and assigns, for a period of
fifty -nine 5 ears from the later of a initial occupancy of the Project, or b issuance of a
certificate of occupancy for the Affordable Units ("Term"); provided, however, in the event an
Affordable Unit is sold during the Term, the new owner shall be msponsible for the resale and
refinance restrictions as set forth in a new Resale Rastriction agreement executed in the form
attached as Exhibit E that will reset the time limit for the affordability restrictions on the
Affordable Unit. Upon Commission's request, Participant shall confirm the commencement and
expiration dates of the Term in a written, recordable instrument. Upon recordation of the Resale
Restriction as to each Affordable Unit, this Agreement shall have no further force or effect as an
encumbrance against each Affordable Unit to which such Resale Restriction pertains, and
Participant shall have no further obligations or liabilities with respect to the Affordable Unit,
including without limitation, any responsibility for compliance by the buyer or its successors
with the terms and conditions of the Resale Restriction, provided that Participant has complied
with the terms of this Agreement,
No Discrimination. Participant covenants, by and for itself and any successors in interest,
that there shall be no discrimination against or segregation of any person or group of persons on
account of any basis listed in subdivision a or d of Section 12955 of the Government Code, as
those bases are defined in Sections 12926, 1 2926.1, subdivision m and paragraph 1 of
subdivision p of Section 12955, and Section 12955.2 of the Government Code, in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall
Participant, itself or any person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,, location,
number, use or occupancy of tenants, lessees, subtenants, subleases or vend es in the Property.
All deeds, leases or contracts made relative to the Property, the improvements thereon or
any part thereof, shall contain or be subject to substantially the following nondiscrimination
clauses:
(a) In deeds:
1. "The grantee herein covenants, by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming
under or through t .cm., that there shall be no discrimination against or
segregation of any person or group of persons on any basis listed in
subdivision a or d of Section 12955 of the Government Code, as those
bases are defined in Sections 12926, 12926.1, subdivision m and
paragraph 1 of subdivision p of Section 12955, and Section 12955.2 of
the Government Code, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein conveyed, nor shall the
grantee, himself or herself or any person claiming under or through him or
her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, subleases or vendees in the land
herein conveyed. The foregoing covenants shall run with the land."
1345 801 v I B 21942/0039
2, Notwithstanding paragraph 1,, with respect to familial status, paragraph 1.
shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status,
nothing in paragraph 1. shall be construed to affect Section 51.2, 51.3,
51.4, 51.10 5 1.11 and 799.5 of the Civil Code relating to housing for
senior citizens. Subdivision d of Section 51 and Section 1360 of the
Civil Code and subdivision n, o, and p of Section 12955 of the
Government ent Code shall apply to paragraph 1.
(b) In leases: "'The lessee herein covenants, by and for himself or herself, his or her
heirs, executors, administrators and assigns, and all persons claiming under~ or
through him or her, and this lease is made and accepted upon and subject to the
following conditions:
1.
That there shall be no discrimination against or segregation of any person
or group of persons on account of any basis listed in subdivision a or d
of Section 12955 of the Government Code, as those bases are defined in
Sections 12926, 12926. 1, subdivision m and paragraph 1 of subdivision
(p) of Section 12955, and Section 12955.2 of the Govern i nent. Code, in the
leasing, subleasing, transferring, use., occupancy, tenure or enjoyment of
the laird herein leased, nor shall the lessee, himself or herself or any
person claiming under or through him or heir, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees,
subleases, subtenants or vendees in the land herein leased."
2. Notwithstanding paragraph 1., with respect to familial status, paragraph 1.
shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status,
nothing in paragraph 1, shall be construed to affect Section 51.2, 51.3,
51.4, 51.10 51.11 and 799.5 of the Civil Code relating to housing for
senior citizens. Subdivision d of Section 51 and Section 1.360 of the
Civil Code and subdivision (n), (o), and p of Section 12955 of the
Government Code shall apply to paragraph 1.
(c) In contracts: "There shall be no discrimination against or segregation of any
person or group of persons on any basis listed in subdivision a or d of Section
12955 of the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision and paragraph 1 of subdivision p of Section 12955,
and Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee,
himself or herself or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subleases, subtenants or vendees in the land." The contract shall further specify
that the foregoing provisions shall be binding on the contracting party or parties,
any subcontracting party or parties or other transferees under the instrur ent.
13 4011 B 2194210039
4.5 Amendment This Agreeiue .t may be amended only in writing by Commission and
Participant.
4.6 No Impairment of Lien No violation or breach of the covenants, conditions, restrictions,
provisions or limitations contained in this Agreement shall defeat or render invalid or in any wa
impair the lien or charge of any mortgage, deed of trust or other financing or security instrument,
provided, however, that any successor of Participant to the property shall be bound by such
covenants, conditions, restrictions, limitations and provisions, whether such successor's title was
acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise.
4.7 Successors and Assigns.
A. Binding Effect; Covenants Run with Land. The covenants contained in this
Agreement shall inure to the benefit of Commission and its successors and assigns and shall be
binding upon participant and any successor in interest to the Property or any part thereof, and
such covenants shall run in favor of the Commission and its successors and assigns (which may
include the City) for the entire period during which such covenants shall be in force and effect,
without regard as to whether the Commission is or remains are owner of any land or interest
therein to which such covenants relate. Upon the transfer by participant of all or any portion of
Its interest in the Property, all references in this Agreement to participant thereafter shall mean
and refer to such successor in interest of participant as may then be the owner of the Property or
such portion thereof, or interest therein. In the event that participant transfers the Property or
any portion thereof or interest therein to more than one successor in interest, all successors in
Interest shall be collectively required to comply with the provisions of this Agreement and shall
be jointly and severally liable for any breach or failure to comply, unless each successor and
Commission enter into an agreement outlining the specific obligations of each successor for
compliance with this Agreement. Commission, and its successors and assigns, in the event of any
breach of any such covenants, shall have the right to exercise all of the rights and remedies, and
to m, main any actions at law or suits in equity or other proper proceedings, to enforce the
curing of such breach. The covenants contained in this Agreement, without regard to technical
classification and designation, shall be for the benefit of and shall be enforceable only by the
Commission, and its successors and assigns.
B. Transfer 'by participant ofPropey Except as expressly permitted by this
subsection B., participant shall not sell, transfer, convey, assign or ground lease the property or
any part thereof or interest therein ("Transfer") during the period between the Effective Date
and the closing date for the sale of the last Affordable Unit pursuant to Article 2 above without
prior written approval of the Commission's Executive Director, or its designee. The approval of
the Commission's ion's Executive Director, or its designee shall not be unreasonably withheld or
delayed. This restriction shall not apply to i any 'Transfer of Participant's interest in the
Property to any trust, p .itnersbip, corporation, limited Ilability company or other entity that 1s
managed and controlled by Participant, or (ii) any Transfer after the closing date for the last
Affordable Unit sold to an Eligible Household pursuant to Article 2 above. This restriction on
Transfer shall not be deemed to limit or restrict: the sale of the 1larlet fate Units, nor shall it be
deemed to limit the making of dedications or granting of easements. or permits to facilitate
development of the Property. This restriction on Transfer shall also not be deemed to prohibit,
limit or restrict the assignment or granting of any security interests in the Property for the
-to-
13458010B 21942/0039
purpose of securing loans or funds t e used for financing the construction of the improvements
on the Property, or the exercise by any lenders of their rights and remedies, including without
limitation foreclosure, under the agreements and instruments evidencing or securing any such
financing approved by the Commission pursuant to the OPA.
Subordination. This Agreement shall have priority over the liens of all mortgages, deeds
of trust and other liens (other than the lien for current, unpaid property taxes) and participant
shall cause all such mortgagees, deed of trust beneficiaries and other lien holders to execute and
deliver to Commission for recordation in the official Records of Alameda County,
subordination agreement, in a form reasonably acceptable to Commission, subordinating such
mortgages, deeds of trust and other liens to this Agreement thereby ensuring the priority of this
Agreement over all such mortgages, deeds of trust and other liens.
4. No Third Party Beneficiaries Notwithstanding anything in this Agreement to the
contrary, there are no third party beneficiaries of this Agreement.
4,10 Effect -of Agreement Notwithstanding anything in this Agreement to the contrary,
nothing in this Agreement shall have any force or effect on any buyer or buyer's right, title or
interest in or to any unit other than the Affordable Units, except that the buyer of an Affordable
Unit shall execute and be subject to the Resale Restriction. The foregoing exemption and release
shall be self executing and require no further instruments or assurances to be effective.
4.11 Default. and Remedies.
A. Any failure by Participant to perform any terra or provision of this Agreement
shall constitute an "Event of Default" 1 if Participant sloes not cure such failure within
thirty days following written notice of default from Commission, or 2 if such failure is net
of a nature which cannot reasonably be cured within such thirty o day period, Participant does
not within such thirty o day period commence substantial efforts to care such failure or
thereafter does not within a reasonable time prosecute to completion with diligence and
continuity the curing of such failure.
B. Any notice of default glen hereunder shall specify in detail the nature of the
failure in performance alleged by Commission and the manner in which such failure of
performance may be satisfactorily cured in accordance with the terms and conditions of this
Agreement. During the time periods herein specified for cure of a failure to perform, Participant
shall not be considered to be in default of this Agreement for any purposes.
C. Any failure or delay by Commission in asserting any of its rights or remedies as
to any Event of Default shall not operate as a waiver of any Event of Default or of any such
rights or remedies or deprive Cormrrrssion of its right to institute and maintain any actions or
proceedings which it may deem necessary to protect, assert or enforce any such rights or
remedies.
D. In the event of an Event of Default under this Agreement, Commission shall have
the right to exercise all of the rights and r ;ern dies, and to maintain any actions under this
Agreement, the Commission Inclusionary Policy, the OP.A., at law, in equity, or other retried
proceedings.
14011B 21942100
E. Notwithstanding the foregoing, in the event that Participant falls to comply with
the terns of this Agreement, Commission may cause City to suspend issuance of building
permits for Market Date Units, building inspections of Market Rate Units, or issuance of
occupancy permits for Market Rate Units, or pursue any other remedy available to it.
4,12 California Law. The laws of the State of California, without regard to conflict of laws
principles, shall govern the interpretation and enforcement of this Agreement.
4.13 Counterparts This Agreement may be signed in multiple counterparts each of which
shall be deemed to be an original.
4,14 Severab111ty Should any provision of this Agreement be found invalid or un nforeeable
by a court or other body of competent jurisdiction, said invalidity, unenforceability or
ineffectiveness shall not affect the validity of the remaining provisions which shall remain in
force. and effect pursuant to the limitations and duration agreed to herein,
4,15 Entire Agreement This Agreement constitutes the entire agreement ent between the parties
and no modification hereof shall be binding unless reduced to writing and signed by the parties
hereto. The exhibits attached to this Agreement are incorporated by reference.
4,16 Interpretation As used in this Agreement, masculine, feminine or neuter gender and the
singular or plural number shall each be deemed to include the others where and when the context
so dictates. The words "include" and "including" shall be construed as if followed by the words
O without limitation." The parties acknowledge that each party and its respective counsel have
reviewed and revised this Agreement and that the rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any document executed and delivered by either party in
connection herewith. The captions in this Agreement are for convenience of preference only and
shall not be used to interpret this Agreement. Reference to section numbers are to sections in
this Agreement, unless expressly stated otherwise,
4,17 Attorney Fees In the event that any party to this Agreement brings an action to interpret
or enforce its rights under this Agreement, the prevailing party in such action shall be entitled to
recover its costs and reasonable attorneys" fees as awarded by the court in such action.
4.18 Authorized Signatories Each of the undersigned hereby warrants and represents that
he /she is duly authorized to execute this Agreement on behalf of the entity for whom he /she
signs,
[Signatur( page fo Ilows]
-12-
1 345 801 v 1 B 219421003
IN WITNESS WHEREOF, Commission and Participant have caused this Agreement to
be executed on their behalf by their respective officers thereunto duly authorized,
RECOMMENDED FOR APPROVAL:
Michael T. Pucci, Executive Director
Housing Authority
COMMUNITY IMPROVEMENT COMMISSION
OF THE CITY OF ALAME A, a public body
corporate and politic
[Signature must be notarized]
APPROVED AS TO FORM:
City Attorney /General Counsel
Executive Director
PARTICIPANT:
I y:
Print Name:
Its
By:
Print acne:
Its:
[Signafurie ?n test be notarized]
[Signature mitst be n otarized]
-13-
1 345 801 1 B 2194210039
NOTARY ACKNOWLEDGMENTS
[TO BE INSERTED]
1345801vlB 2194210039
Q m I i H OME A wl
Le Description of Prope
Exhibit
1345 01 v I B 2194210039
EXHIBIT
Schedule
Exhibit B
1345801viB 21942/0039
EXHIBIT C
Cit y Inclusionary Housing Program Buyer Selection Guidelines
Exhibit
1 345 801 v 1 B 2194210039
I 6 no 0
Affordability Rpstrictions on Resale and
Option to Purchase„ Agreement
Exhibit D
140111 21942/0039
RECORDING G REQUES'T'ED BY
AND WHEN RECORDED MAIL To:
Community Improvement Commission of the
City of Alameda
co Housing Authority
`col Atlantic Avenue
Alameda, California 94501
Attention: Executive Director
This document is exempt from the payment of a
recording fee pursuant to Government Cade 27383.
FORM of
AFFORDABILITY, RESTRICTIONS ON RESALE
AND
OPTION To PURCHASE AGREEMENT
THIS AFFORDABILI'T'Y, RESTRICTIONS OIL RESALE AND OPT10N To
PURCHASE AGREEMENT ("Agreement") is made as of 20 by and
between "Owner, as further defined below) and the Communit
Improvement Commission of the City of Alameda ("Commission") with reference to the
following facts
RECITALS
A. owner is acquiring fee title to that certain real property in the City of Alameda,
County of Alameda, State of California, which is more particularly described in Exhibit A.
attached hereto, together with all improvements now or hereafter located thereon and all
appurtenances thereto ("Property"), subject to the terms and conditions of that eer Owner
Participation Agreement entered into between Commission and
("Participant") slated COPA"),
B. In furtherance of the goals of preserving, improving and increasing the supply of
low- and raod rate- income housing pursuant to the Community Redevelopment Law (Section
3000 et sect. of the Health and Safety Code, et seq. ("CRL"), the Community Improvement
Plan for the Business and Waterfront Redevelopment Project adopted on June 18, 1991, b
Ordinance No.2559, as amended (the "Redevelopment Plan"), and the inclusionary housing
requirements for development within the Business and Waterfront Community Improvement
ement
Project as set forth in Commission Resolution No. -127, as amended by Commission
Resolution No. 09463 ("Commission In lusionar Polic Commission entered into the oP
with Participant to provide the Commission Assistance (as such term is defined in Section of
the OPA necessary to make it economically ll feasible for Participant to sell the Property to
Owner at an Affordable Housing-Cost, as defined below, subject to the covenants, conditions,
restrictions and option to purchase set forth herein.
C. The Commission Assistance is the basis for the principal amount of the
Commission Note and the Commission's Shared Appreciation, as such tens are defined below.
Exhibit D
13458010B 2194210039
D The purpose of this Agreement is to establish the use, occupancy and resale
restrictions in accordance with the CI L, the Redevelopment ent Plan, the Commission Inclursion ry
Policy, the OPA. and the Grant Deed as defined below), and grant to the Commission certain
remedies, including the sight to purchase the Property, as covenants running with the land and
equitable servitudes that benefit the Commission, City, and permitted successors and assigns and
burden the Property, the Owner and all of its successors and assigns. The Property was
purchased by Owner as afinsert as. dp" plica e very 4o w income; '10 income,, moderate incom
household at a below fair market price in accordance with the goals and purposes of the CPL, the
Redevelopment Plan, the Commission Inclusionary Policy and the OPA.
NOW, THE in order to establish the use, occupancy and resale restrictions of
the Property, in accordance with the C L, Redevelopment Plan, the Commission Inclusionar
Policy, the OPA, and Grant Deed and to reserve certain reme dies (including the right to Purchase
the Property) as covenants running with the land and equitable servitudes that benefit
C ommission and City and that burden the Property, the Owner and all of its respective
successors and assigns, Owner hereby agrees that the Property shall be Meld, sold and conveyed
subject to the following covenants, conditions and restrictions, and option to purchase, all of
which shall run with the Property and be binding on all parties having any rights, title or interest
in the Pkoperty, its heirs, successors and assigns, and shall inure to the benefit of the Commission
and City, and that entering into this Agreement is good and reasonable consideration for the
ability to purchase the Property at a below fair market price as described herein.
ARTICLE I
DEF INITIONS
As used in this Agreement, the terms set forth below shall have the following meanings
(other defined terns in this Agreement not referenced below shall have the meanings where first
used).
1.1 "Affordable Housing Costs shall be a s defined in Health and Safety Code
Section 50052.5 or rcuiy successor thereto in effect at the time of purchase of the Property, for
persons and families of income whose gross
income does not exceed °o cc r+
fog. category i�
a.-. r 120%] of Area Median Income adjusted for family size appropriate for the Property. For
the purposes hereof, "family size appropriate for the Property shall be two persons for a one-
bedroom unit, three persons for a two -bedroom unit, four persons for a three bedroom unit, and
five persons for a four- bedroom unit. if the statute is no longer in effect and no successor statute,
is enacted, .the Commission shall establish the Affordable Housing Cost for purposes o this
Agreement.
1. "Appraisal" shall mean an a setting forth the Market Value of the Property
assuming no affordability requirements or other similar restrictions on income requirements,
occupancy or resale of the Property, prepared by an appraiser approved by Commission and who
is an MAI member of the American Institute of Real Estate Appraisers or a S PA member of the
Society of Real Estate Appraisers or, in the case such professional designations are modified or
discontinued, the most nearly equivalent successor designations).
Ex hibit D
13458010B 2194210039 -2-
1. "AreaMedian Income" shall mean the median household income (adjusted for
household size) of the Metropolitan Statistical Area in which Alameda County is located, as
established in accordance with Section 50093 of the California Health and Safety Code.
1. "Assumption Agreement" shall jean the Disclosure, Acknowledgment and
Assumption Agreement in the form, attached as Exhibit G.
1.5 "Capital Improvements" shall mean any capital improvements or upgrades made
by owner to the Property which significantly increases the value of the Property, and which are
pre approved in writing by Commission. Commission, prior to an owner commencing work on
the Capital Improvements, shall in its sole and absolute discretion determine a whether the
improvements qualify as Capital Improvements; b the value of the Capital Improvements
which value may be less than the actual cost of the Capital hnpro ements; and c the
depreciation value or rate, if any, to be applied to such value. By way of example, upgrading an
appliance shall not be a Capital Improvement, brit upgrading all appliances, flooring, countertops
and cabinetry in the kitchen could be approved by the Comimsslon as a Capital Improvement
under the particular circumstances presented.
1.6 "City" shall mean the City of Alameda.
1.7 "C &Rs shall mean that certain Declaration of Covenants, Conditions, and
Restrictions recorded on as Document No. in the official records
of Alameda County, as amended from time to time. [Delete .if -if- pp i ble].
1. "Commission" shall men the Community Improvement Commission of the City
of Alameda, or a governmental ental agency or a nonprofit organization to which Commission has
assigned any or all of its rights under this Agreement.
1. "Commission Teed of Trust" shall mean the deed of trust executed by Owner in
favor of Commission securing owner's obligations under the Commission Note, substantially in
the form of Exhibit P.
1.10 "Commission Note" shall mean a promissory note executed by Owner in favor of
the Commission in the principal amount equal to the difference between the Market Value of the
Property calculated at the time owner acquired the Property and a the Initial Price, in the case
of the first owner, or b the Eligible Buyer Purchase Price, in the case of subsequent owners,
plus a contingent deferred amount equal to the Commission's Shared Appreciation, substantially
in the form of Exhibit E.
1.1-1 "Commission option Pace" shall mean an amount equal to the Eligible Buyer
Purchase Price less Repair Costs.
1.1 "Commission's Purchase Option" shall have the meaning given in Section 5. 1,
1.13 "Commission's Shared appreciation" shall have the meaning given in Section 6.3.
1.14 "Eligible Buyer" shall mean those persons and families ineeting the income
re uirernents described in Section 1.1.
Exhibit
1401u1B 2194210039 -3-
1.15 "Eligible Buyer Purchase Price" shall mean the allowable purchase price to be
paid by an Eligible Buyer of the Property as determined under ,section 4.3.
1.16 "Event of Default" shall have the meaning given in Section 8.11.
1.17 "Extraordinary Sale shall mean a Sale conducted under the provisions o
Article 6.
1.18 "Extraordinary Sale Price", means the actual gross sales price for the Property
under an Extraordinary Sale, pursuant to Section 6 .2.
1.19 "Grant Deed shall mean the grant deed executed by Participant conveying the
Property to Owner for the initial Owner, or the grant decd executed by the initial owner or
subsequent owners conve in,g the Property to subsequent Owners.
1.20 "Initial Financing'" shall have the meaning given in Section 7 1 (a).
1.21 "Initial Price's shall rnean the initial Purchase price of the Property paid by the
Owner, in the case of the initial owner, or the Eligible Buyer Purchase Price, in the case of a
subsequent O
I.2 "Market Value" shall men the market value of the Property, assuming no
affordability or resale restrictions, as determined by an rais .l of the Property obtained from
time to time.
1.23 "Maximum Affordable Housing Costs" means the maximum affordable housing
cost allowable for a Finsert.!-��as':': i r', low !o. .M0 inc �rle household, as
determined under California Health and Safety Code Section 50052.5 calculated at the time -of a
Permitted Sale.
1.24 "Notice of Intent to Transfer" is described in Section 3 .2 and Exhibit B.
1.25 "Notice of Intent to Sell is described in Section 4. 1 and Exhibit C.
1.26 "Notice of Extraordinary Sale" is described in Section 6.2 and Exhibit D
1.27 Owner shall mean the purchaser of the Property as identified in the Preamble
and Recital A, and includes all of Owner's sucecssors and assigns, as permitted under this
Agreement.
1.28 "Owner's Gross Proceeds" is equal to the Eligible Buyer Purchase Price paid for
the Property.
1.29 owner "s Net Proceeds" means the net amount available to owner pursuant to
Section 4.5(d) in case of a Permitted Sale, or Section 6.4(0) in the case of are Extraordinary Sale.
1.30 "Permitted Transfer" shall mean a Transfer described in Section 2.2.
1.31 "Permitted Sale shall rnean a Sale described in Section 2.3.
Exhibit D
13 80 1 v I B 21942 9 -4-
1.32 "Prohibited d Transfer" shall mean any Transfer that is not a Permitted Transfer as
described in Section 2.4.
1.33 "Prohibited Sale" shall mean any Sale that is not a Permitted Sale or
Extraordinary Sale as described in Section 2.4.
1.34 "Property" shall have the meaning given in Recital A.
1.35 "Refinancing" shall have the meaning given in Section 7. l (b).
1.36 "Repair Costs" shall have the meaning given in Section 4.2.
1.37 ""sale," "Sell" or "Sold shall mean a Transfer of the Property for monetary
consideration.
1. "Senior Lien" shall have the meaning given in Section '7.1.
1.39 "Senior Lender" shall have the meaning given in Section 7.1.
1.40 "Term" shall have the meaning given in Section 8.17.
1.41 "Transfer shall men any voluntary or involuntary assignment or transfer of
ownership of or any interest in the Property, including without lirr'tati n a fee simple interest,
tenancy in common, joint tenancy, community property, tenancy by the entireties, life estate or
other limited estate or use, rental or tenancy they ;ein.
1.42 "Transferee shall mean the person or persons to whore the Property, is
Transferred or Sold.
1.43 "Unit Amenities shall have the meaning given in Section 4.2.
.ARTICLE 2
RESTRICTIONS
2.1 Owner Acknowledgments.... and Agreements Owner hereby acknowledges and
agrees that taking title to the Property shall constitute Owner's acknowledgment and agreement
of the following:
A. TIME PROPERTY IS BEING ACQUIRED BY OWNER AT A COST
WHICH IS BELOW MARKET RATE FOR SUCH PROPERTY AND THAT SUCH
PROPERTY IS SUBJECT TO THE RESALE RESTRICTIONS AND COMMISSION'S
PURCHASE SE OPTION CONTAINED IN THIS AGREEMENT GRANTING THE
COMMISSION AN-IRREVOCABLE POWER -OF ATTORNEY COUPLED WITH AN
INTEREST TO ACT ON TIDE OWNER'S BEHALF TO EXECUTE, ACKNOWLEDGE
AND DELIVER ANY AND ALL DOCUMENTS RELATING TO THE
COMMISSION'S PURCHASE OPTION. THERE SHALL BE NO SALE OR
TRANSFER F THE PROPERTY EXCEPT IN ACCORDANCE R.DA.NC WITH THIS
AGREEMENT. ANY SALE OIL OTHER TRANSFER, OF THE PROPERTY IN
VIOLATION OF THIS AGREEMENT SHALL BE VOIDABLE BY COMMISSION,
Exhibit D
1345 801 vIB 21942/0039
B. OWNED SHA OCCUPY THE PROP AS ITS PRINCIPA
IPA
RESIDENCE FOR THE DURATION of ITS OWNERSHIP. Upon request by the
Commission, each Owner shall subrnit an affidavit to the Commission certifying under
penalty of perjury that the Property is the owner's principal residence, and provide
Commission with a recent utility bill or other evidence of residency satisfactory to the
Commission. if an Owner vacates the Property, or for any reason does not continue to
occupy the Property as its principal residence, Commission may declare an Event of
Default pursuant to Section 8.11 and exercise any or all of its rights and remedies
hereunder, including without hinit do the Commission's Purchase option pursuant to
Article 5.
C. owner's right to resell the Property at Market et Value is very limited, and
that, in certain instances, Commission will have the option to purchase the Property from
own r, In order to ensure the Property shall remain available at an Affordable Housing
Cost over the Term of this Agreement, owner's right to resell the Property may not be as
favorable as the rights of other property owners whose properties are not affected by this
Agreement and are not encumbered by similar agreements.
D. The Property ill not necessarily appreciate in value during the duration
of owner's ownership, and the Eligible Buyer Purchase Price may be less than the Initial
Price that owner originally paid for the Property and, thus, when the owner sells the
Property it may receive less than it originally paid for the Property.
2.2 Permitted Transfers. Subject to compliance with the procedures described in
Article 3, including but not limited to providing required notices to the Commission, the
following Transfers of the Property without monetary consideration are "Permitted Transfers":
(a) Transfer of title by gift, devise, or inheritance to are Owner's spouse or state
registered domestic partner;
(b) Transfer of title by devise or inheritance to an owner's natural or adopted
children, provided such children qualify as Eligible Buyers;
(c) Transfer of title by an Owner's death to a surviving Joint tenant, tenant by
entireties, or a surviving spouse of cornrrr pity property;
(d) Transfer of title to a spouse or state registered domestic partner as part of divorce
or dissolution proceedings; or
(e) Transfer; of title or any interest in the Property to the spouse or state registered
domestic partner in conjunction with marriage or establishment of a registered domestic partner
relationship.
2.3 Permitted Sales. Subject: to compliance with the procedures described in Article
and Article 5, including but not limited to providing required notices to the Commission, are
Owner may Sell the Property to an Eligible Buyer "Permitted Sale"). If the Commission or the
Owner are unable to identify an Eligible Buyer as provided in Article 4, then Commission shall
have the option to purchase the Property pursuant to the Commission's Purchase Option
described in Article 5. If the Commission or the owner are unable to identify an Eligible Buyer
Exhibit T
14011E 21942/0039 -6-
and the Commission has naot exercised the Commission's Purchase option, the Owner shall have
the right to Sell the Property to a non- Eligible Buyer in accordance with the provisions of
Article 6.
2.4 Prohibited Transfers; Prohibited S ales Any Transfer other than a Permitted
Transfer is a Prohibited Transfer, A Prohibited Transfer specifically includes any Transfer of a
use, rental or leasehold interest in the Property. Any Sale of the Property other than a Permitted
Sale, the Commission's Purchase option, or an Extraordinary Sale is a Prohibited Sale. If an
Owner attempts or makes a Prohibited Transfer or Prohibited Sale, then In addition to all other
rights or remedies Commission may have under this Agreement, Commission shall have the right
to exercise the Commission's Purchase option described in' Article 5, which may be exercised
against the Transferee or the owner under such Prohibited Transfer or Prohibited Sale.
ARTICLE 3
TRANSFER PROCEDURES
3.1 Transfer by Devise or Inheritance if an owner has made a Permitted Transfer
(other than by gift) by devise, inheritance or rights of survival under Sections 2. a b or (c),
the trustee, executor or new owner shall notify Commission in writing of the change in
ownership of the Property within 20 clays of such event giving rise to such Permitted Transfer.
Any such Transferee shall be bound by and subject to the provisions of this Agreement and the
trustee, executor or new owner shall execute, acknowledge and deliver to the Commission,
within such D-day period, an Assumption Agreement in the form of Exhibit G, and the failure to
o so shall constitute a default under Section 8.11; provided that such Transferee shall be bound
by and subject to the Provisions of this reement notwithstanding its failure to deliver such
executed and recordable le Assumption Agreement.
3.2 other Permitted Transfers. If an Owner desires to Transfer the Property by gift
wader Section 2.2(a) or by a Perir"tted Transfer* wader Sections 2.2(d) or (e), owner shall provide
Commission with a Notice of Intent to Transfer, together with any other documentation
Commission may reasonably request in order to erasure that the Transfer is a Permitted Transfer.
Upon receipt of a Notice of Intent to Transfer, Commission shall have 45 days after receipt by
the Commission of such Notice of Intent to Transfer and other documentation to delivery written
notice, to the owner of its approval or disapproval of the Transfer as a Permitted Transfer. The
Transfer shall be deemed a Permitted Transfer if Commission falls to disapprove the proposed
Transfer within such 45 day period. The owner shall complete the Permitted Transfer, including
recordation of all applicable documents, within 60 days after receipt of approval of the Transfer.
Any such Transferee shall be bound by and subject to the provisions of this Agreement as an
Owner and shall execute, aelc owledge and deliver to the Commission an Assumption
.grec n.ent in the form of Exhibit G, and the failure to do so shall CODSfitutc a default under
Section 8. 1 t; provided that such Transferee shall be bound by and subject, to the provisions of
this Agreement as an owner notwithstanding its failure to deliver such executed and recordable
Assumption Agreement.
3.3 Transfer of the Prop erty without Commission's Aj2pmval. If Commission
deterr roes that the proposed Transfer* is a_ Prohibited Transfer, the Owner shall not Transfer the
Property. Any Transfer of the Property without omission's approval shall be voidable and in
such event, in addition to all other rights and remedies Commission may have under this
Exhibit D
1345801viB 1942/003 -7-
gr ement, Commission shall have the right to exercise Commission's Purchase option pursuant
to Article 5, which may he exercised against the Transferee or owner under such Prohibited
Transfer.
ARTICLE 4
BADE P OCEDURES
4.1 Notice of Permitted Sale. If an owner desires to Sell the Property, the Owner
shall provide Commission with a Notice of Intent to Sell. Within 60 days after receipt of the
Notice of Intent to Sell, the Commission shall use its reasonable efforts to identify an Eligible
Buyer, taping into consideration the requirements of the OPA, the Grant Deed and this
Agreement. If Commission identifies an Eligible Buyer, the owner shall Sell the Property to the
Eligible Buyer at the Eligible Buyer Purchase Price as determined pursuant to Section 4.3
herein) within 30 days- after identification of the Eligible Buyer. If the Sale to the Eligible Buyer
does not occur within said 30-day period, Commission may either extend the period of time for
the Sale to occur or may, within 30 days thereafter, identify another Eligible Buyer, in which
case all the provisions of this Section 4.1 shall be applicable to such Eligible Beyer, including
the provisions of this sentence. If Commission is unable to identify an Eligible Buyer within the
applicable time periods set forth above, then the owner shall have the option to identify an
Eligible Buyer, subject to Commission's written approval, which approval may tale into
consideration the requirements of the OPA, the Grant Deed and this Agreement. If Commission
or the Owner) fails to identify an Eligible Buyer within the applicable the periods set forth
above, Commission shall have 30 days from the expiration of the final applicable period to
exercise Commission's Purchase option under Article 5.
4.2 X s ction; ,Repair Costs Upon receipt of a Notice of Intent to Sell, Commission
shall have the right to enter the Property at reasonable times with 24 hours advance notice to
inspect the dwelling unit on the Property to determine whether any damage or violations of
applicable laws or ordinances exist. Commission shall conduct its inspection within 15 days
after receipt of the Notice of Intent to Serf. In the event any damage or violations are discovered,
Commission. shall determine the cost of repair; or correction of such condition "Repair Costs").
By way of example, Repair Costs would include the cost of repairing or replacing such things as
broken, damaged or worn appliances, fixtures including lights, shelving, bathroom fixtures,
cabinets, countertops, tubs and vanities) walls, ceilings and paint and exterior surfaces, window
coverings and carpets (collectively "Unit Amenities" due to stains, extreme wear, damage or
destrLictio Within 30 clays after the inspection, Commission will prepare a written report
describing the Repair Costs. The Owner shall have the option to either i repair or replace the
items on such report at Owner's cost prior to closing (without extending the closing date), or
(H) at closing cause the escrow holder to pay the repair Costs to Commission. If an Owner elects
to repair or replace the items on such report, Commission shall have the right to re- inspect the
Property under the terms of this Section 42 after the repairs and /oar replacements are complete.
If Commission determines that deficiencies still remain, the Owner shall cause the escrow agent
at closing to pay Commission from Owner's Gross Proceeds the Repair Costs in such amounts as
Commission determines are necessary to complete the remaining repairs and/or replacements.
Commission shall use any repair Costs paid to it to mare the necessary repairs and/or
replacements.
Exhibit D
13458010B 2194210039
4. ligible Buyer Purchase Price The Purchase Price to be paid by an Eligible
Buyer for the Property shall be the total sum of a the Initial Price paid by owner for the
Property, s b any increase in the. Affordable Housing Cost that has occurred since the
Owner's purchase of the Property, lu the depreciated value of any Capital Improvements
approved by the Commission as described in Section 1.5; provided, in no event shall the Eligible
Buyer Purchase Price exceed the Maximum Affordable Housing Cost allowable for a [inserta:8
ac h*cab -.;v rY- w, low-0 moderate] income household. The Eligible Buyer Purchase Price
shall be established by the Commission in accordance with this Section 4. 3, within 20 days
following omission's receipt of a Notice of Intent to Sell delivered pursuant to Section 4.l
4.4 Appraisal; Commission Documents Upon receipt of a Notice of Intent to Sell,
Commission shall cause an Appraisal to be completed prior to close of escrow to determine the
Market Value of the Property as of the date of such Notice. The cost of such Appraisal shall be
paid from owner's Gross Proceeds at close of escrow.
At close of escrow, the Eligible Buyer shall deliver or cause to be delivered into escrow;
(a) the Commission Mote, fully execrated by the Eligible Buyer in favor of the
Commission in substantially the form of Exhibit B hereto. The Commission Note shall be in the
principal amount equal to the difference between the then current Market Value of the Property,
and the Eligible Buyer Purchase Price being paid for the Property;
b) the Commission Deed of Trust securing the Commission Note fully executed by
the Eligible Buyer in recordable form, in substantially the form of Exhibit P hereto;
(c) the Assumption Agreement, fully executed in recordable form by all appropriate
parties, in substantially the form of Exbibit G hereto; and
(d) the required down payment and all documents required by the Eligible Buyer's
Senior Lender.
4.5 Proceeds from Permitted Sale, owner's Gross Proceeds from a Permitted Sale
shall be distributed in the following priority to the extent funds from Owner's Gross Proceeds are
available:
(a) first, to pay any amounts owed under the owner's Senior Lien;
(b) second, to pay the costs of the Appraisal under Section 4.4, and all customary
closing costs that a seller would pay in Alameda County and a basic one -year home warranty s_
provided in Section 4.;
(c) third, to pay to Commission all Repair Costs if any, and to the extent not already
paid) which are owed to the Commission under Section 4.2; and
d) fou th, any remaining amounts shall be paid to the owner as the owner's Net
Proceeds,
4.6 Personal Prop 1 #ty Any sums paid to Owner by are Eligible Buyer for personal
property shall not be part of the Eligible Buyer Purchase Price. No other consideration of any
Exhibit D
45 80 2194210039 -9-
nature whatsoever shall be paid by an Eligible Buyer to the owner unless fully disclosed to and
approved by Commission in advance.
4.7 Real Estate Broker Commission. If Commission identifies the Eligible Buyer, no
real estate broker's commission shall be paid to any real estate brayer unless otherwise approved
by the Commission. If the Eligible Buyer is identified by owner, as between the owner and the
Eligible Buyer, the owner shall have the sole and exclusive obligation to pay any real estate
broker's commission from Owner's Net Proceeds regardless of whether the brayer was engaged
by the Owner or Eligible Buyer.
4.8 Closing. At closing, the owner shall convey fee title to the Eligible Buyer by
standard title company form Grant Deed. The owner shall cause the title company to issue to
the Eligible Buyer a CLTA standard coverage owner's form of title insurance policy in the
amount of the Eligible Buyer Purchase Price insuring title to the Property is vested in the Eligible
Buyer, subject to exclusions from coverage, exceptions for current taxes and assessments not yet
due, this Agreement and all documents recorded pursuant to this Agreement and such other
matters (other than encumbrances created or suffered by the Omer which were exceptions to
title on the elate of this Agreement. The Owner shall pay for a basic one --year home warranty
contract issued by a reputable and established company to the Eligible Buyer. The Eligible
Buyer shall pay the costs of any longer or more extensive warranty. All other closing costs shall
be paid by the owner or the Eligible Buyer pursuant to the custom in Alameda County.
ARTICLE
COMMISSION'S PURCHASE OPTION
5.1 Purchase option By taking title to the Property, each owner irrevocably grants,
to Commission an option to purchase the Property (the "Commission's Purchase option" at the
Commission option Price upon the occurrence of any of the following:
(a) in the event Commission or owner is unable to identify an. Eligible Buyer
pursuant to and within the times set forth in Section 4.1;
(b) in the event of any Prohibited Transfer or Prohibited Sale by the owner;
(c) in the evert that owner is in default of the occupancy requirement set forth in
Section 2.1. B
(d) upon occurrence of an Evcnt of Default (as defined in Section 8.11);
(e) in the event that escrow falls to close within the ties set forth in Section 4.1 or
Section or
(f) as reserved to Comrm*ssion under Section 6.1 for the period of time from Owner's
Notice of Extraordinary Sale pursuant to Section 6.2 hereof to the elate of written acceptance by
Owner of an offer to purchase the Property from an Eligible Buyer;
provided, that in the case of (b), (c), d or (e), above, Commission's Purchase option
shall be in addition to any other remedy provided in this Agreement for an Event of Default. By
taking title to the Property, Owner agrees that Commission's facilitation of the Transfers
Exhibit
13010B 21942/0039 _10-
contemplated Herby and its acts, commitments and expenditures in furtherance thereof
constitute adequate consideration for the grant of the Commission's Purchase option.
5.2 Exercise of option
a)
Commission ion pursuant to
Purchase option within
Section 5.4.
Sale. If
Subsection
the 30-day
the Cormnission's Purchase option is available to the
5.1(a), then Commission may exercise the Commission's
period described in Section 4.1 and in accordance with
b Prohibited Transfer, Prohibited Sale Failure to occupy or Event of Default If
the Commission's Purchase option is available to the Commission pursuant to Subsection 5.1(b),
c), or d above, then Commission may exercise its option in accordance with Section 5.4.
(c) Failure to Close Escrow. If the Commission's Purchase option is available to the
Commission pursuant to Section 5.1 e or f), then Commission shall exercise its option in
accordance with ,Section 5.4.
5. Assignment of Commission's Purchase option After Commission has exercised
the Commission's Purchase option, Commission may, without the owner's or Transferee's
consent, assign the Commission's purchase option to an Eligible Buyer or to a governmental
agency or non- profit organization that agrees to be subject to this Agreement; provided,
however, that any such assignnnent shall not extend any time limits contained in this Agreement.
5.4 Procedure Upon Exercise of option Commission shall exercise the
Commission's Purchase option by delivering written notice to the owner (and to Transferee, if
applicable). Closing of escrow shall occur within I 10 days (plus any time delays caused by the
Owner), or such additional time as reasonably determined by the Commission is necessary under
the circumstances after the date of Commission's written notice exercising the ommission's
Purchase option.
5.5 Failure to Close. If after Commission exercises the Commission Purchase option
pursuant to Section 5.1 the Commission fails to close escrow pursuant to Section 5.4, then the
Owner may conduct an Extraordinary Sale under Article 6. If after Commission exercises the
Conunisslon Purchase option pursuant to Section 5.1 b (c), (d), e or f), the Commission sion fails
to close escrow pursuant to Section 5.4, then the Commission shall be deemed to retain all
remedies av aii abl e under S ecti on 8. 11.
5. Power of Attorney By taking title to the Property, each owner grafts to
Cornirdssion an irrevocable power of attorney coupled with an interest to act on the owner's
behalf to execute, acknowledge and deliver any and ail documents relating to the on nission's
Purchase option.
ARTICLE
EXTRAORDINARY DII A BADE
6,1 When Extraordinary Sale Pe mitt If Comm fission or an Owner fails to identify
an Eligible Buyer within the trines set forth in Section 4.1 after Commission's receipt of a Notice
of Intent to Sell, and:
Exhibit D
134580tvIB 2194210039 i Z
a) Commission fails to exercise the Commission's Purchase option within the tunes
set forth in Sections 4.1 and .2a, or
(b) Commission fails to close escrow pursuant to Section 5.4 after exercising the
Commission's Purchase option pursuant to Section 4.1 and 5.2(a),
then the owner shall have the right to male an Extraordinary Sale in accordance with the
procedures set forth in this Article 6; provided, however that Commission shall retain the
Commission's Purchase option for the period of time from Owner's Notice of Extraordinary Sale
pursuant to Section 6.2 hereof to the date of written acceptance by owner of an offer to purchase
the Property from a buyer. In no event shall an Owner have the night to make an Extraordinar
Sale in the event of any attempted or actual Prohibited Transfer or Prohibited Sale by the owner
or if there is any other Event of Default by the owner under this Agreement.
6.2 Notice of Extraordinary .Sale; Ap ralsal. Each owner; shall notify Commission of
the owner's intent to finale an Extraordinary Sale by delivering a Notice of Extraordinary Sale.
The Notice of Extraordinary Sale shall contain a request that Commission calculate the current
Market Value of the Property based upon an Appraisal, the cost of which shall be paid by owner
through escrow. Commission shall provide the owner with a copy of the Appraisal within 10
days after receipt by the Commission. Commission shall use reasonable efforts to obtain the
Appraisal within 60 days after receipt of the Notice of Extraordinary Sale. The Owner shall be
required to Sell the Property at a price not less than the current Market Value, unless otherwise
approved by Commission in writing. All transfer documents relating to the Extraordinary Sale
shall be submitted to the Commission for its review and approval as consistent with the terms of
this Agreement. The actual gross sales price for the Property under any such sale is the
Extraordinary Sale Price.."
6. Commission's Shared Appreciation In the event of an Ex traordinary Sale, the
Owner whose Property is the subject of the Extraordinary Sale shall pay to the Commission in
addition to the principal amount of the Commission Note, a share of the appreciation (the
"Commission's Shared Appreciation" in the value of the Property between the time the Property
was acquired by the Owner and the Extraordinary Sale in ace or ante with C allfor ma Civil Code
Section 1917.006 and as provided for herein.
The appreciation in the value of the Property shall be deterMined based on the difference
between the Appraisal prepared at the time the Property was acquired by the Owner, and the
Extraordinary Sale Price, The distribution of any appreciation in value of the Property to
Commission or Owner shall only be available after payment of all other sums set forth in Section
6. 4 (a through e and shall be shared by the Owner and the Commission in proportion to the
amount of initial equity contributed by each party as follows:
(a) The Commission's initial equity contribution shall equal the principal amount of
the Commission Note (which shall be equal to the difference between the Market Value of the
Property at the time of acquisition by the Owner and the Initial Price, in the case of the original
Owner, or the applicable Eligible Buyer Purchase Price, in the case of a subsequent owner).
(b) The Owner's initial equity contribution shall be equal to the amount of the do n-
pa inent paid by the Owner at the time Owner acquired the Property plus any escrow fees,
Exhibit
13458010B 21 94210039 1-
transfer taxes, recording fees, brokerage commissions and similar costs of acquisition actually
paid by the owner for the acquisition of the Property, as substantiated by the owner pursuant to
Section 6.7 hereof.
Example If, i at the time an owner acquired the Property, the owner paid a down-
payment equal to $18,000 and, escrow fees, transfer taxes, recording fees, brokerage
commissions and similar costs of acquisition actually paid by owner equal to $2,000, resulting in
total owner equity amount of $20,000, and ii) the Commission Note for such t ransaction
reflected a principal amount of $80,000, then (Iii) after payment of all other sums set forth in
Section 6.4 (a) through (d), the owner would receive 20 of any remaining appreciation value,
and the Commission would receive 0% of any remaining appreciation value at the time of an
Extraordinary Sale.]
c) The Commission's Shared Appreciation shall be included in th e Commission N ote
as a contingent deferred amount payable to Commission in the event of an Extraordinary Sale.
d) The amount of Cornrfflssion's Shared Appreciation collected by Commission sbali
be deposited into the Commission's Low and Moderate Income Housing Fund established
pursuant to Section 33334.3 of the CRL and used by Commission to assist in the provision of
housing that is affordable to persons and families of low and moderate income in accordance
w Civil Code Section 1917.
6. Distribution of Proceeds. The Extraordinary Sale Price shall be distributed in the
following priority to the extent Binds are available:
a) first, to pay any amounts owed under the selling owner's Senior Dien;
b) second, subject to the provisions of Section 6 below, to pay all customary
closing costs, Appr� sal costs, and escrow fees that are the responsibility of the selling owner;
c) third, to pay to Comim all amounts owing under the C ommission Dote and
Commission Deed of Trust, i ncluding th e initial p rinc ipal amount and an y other amounts owe
pursuant to the Commission Mote, except the Comirrission's Shared Appreciation;
d) fourth, subject to the provisions of Section 6,7 below, to pay the selling Owner
the following:
i. mount of down payment paid by owner at the time Owner
acqu ired the Property;
ii. amount of installment payments of mortgage principal prepaid on
Owner's Senior Lien by owner prior to the Extraordinary Sale;
iii. amount of escrow fees, transfer; taxes, recording fees, brokerage
commissions and similar costs of acquisition actually paid by
Owner;
iv. amount of money paid by owner for Capital Improvements to the
Property; and
Exhibit D
14011E 21942/0039 1
V amount equal to the "legal rate of interest's as defined in the
Commission Tote) on cash payments by Owner as identified in 1
through i above.
(e fifth, to pay any remaining balance pro-rata on the basis of per nta
determined in accordance with Sections 6. 3 (a and b), to the Commission for the amounts
owing under the Commission Note for the Commission's Shared Appreciation and to the selling
Owner, as the owner's Net Proceeds.
6. Time Requirements for Extraordinary Sale Each owner shall complete an
Extraordinary Sale within 120 days after receipt of the Appraisal under Section 6.2. If the
Extraordinary Sale is not completed within such time, and owner is not bound by written
contract with a buyer to Sell the property, the Commission may either i designate an Eligible
Buyer for the property pursuant to Section 4. 1, in which case the provisions of Article 4 shall
apply in lieu of the provisions of this Article 6, or ii exercise the Commission's Purchase
Option under Section 5. 1, in which case the provisions of Article 5 shall apply in lieu of the
provisions of this Article 6.
6.6 Effect of trio r i dry Sal Upon the close of escrow for an Extraordinary Sale
in compliance. with the provisions of this Article 6, the purchaser at the Extraordinary Sale shall
acquire title to the Property free and clear of the provisions of this Agreement, including the
Commission's Purchase option. pursuant to Section 8.13 and in accordance with this Section
6.6, Commission agrees to execute, acknowledge and record a release or other documentation
sufficient to release the Property sold at an Extraordinary Sale from the provisions of this
Agreement, including the Commission's purchase option.
6.7 Owners Burden to Substantiate Costs; Extraordinary Sale; Foreclosure Prior to
the close of escrow in the event of an Extraordinary Sale, selling owner shall submit evidence to
the .reasonable satisfaction of the Commission not less than 30 days prier to the first scheduled
slate for the dose of escrow to allow the Commission to verify the evidence provided by owner
of the Owner's initial equity as set forth in Section 63(b) and Owner's costs as set forth in
Section 6.4(b) and (d). To the extent such evidence is not submitted by owner to the reasonable
satisfaction of Commission at least 30 days prior to the first scheduled date for the close of
escrow, such costs shall be deemed waived by the Owner and owner shall not be entitled to have
such costs, as appllcablen included its part of owner's initial equity under Section 63(b) or to
receive payment of the sums set forth in Section 64(b) and (d). Commission aelmo ledges that
such evidence may include, by way of example and not limitation, Owner's original closing
statement, harm statements, copies of cancelled checks, and invoices from contractors, shall be
considered reasonable evidence of Owner's initial equity as set forth in Section 6.3(b). In the
event of a foreclosure sale, this Section 6. 7 shall operate to require the same e obligations of
Owner as in an Extraordinary Sale and all refere .ees to the "close of escrow" shall be replaced
b "foreclosure sale,"
Exhibit D
13458010B 2194210039 -14-
ARTICLE '7
LENDER PROVISIONS
S
7.1 Senior Liens. Mortgages, deeds of trust, sales and leases -back or any other form
of conveyance required for any reasonable method of financing (subject to Section 7.2, the
"Senior Lien") are permitted, but only as follows:
(a) for the sole purpose of securing a purchase money loan of funds to be used by an
Owner for financing the acquisition of the Property by the Owner "Initial Financing"), provided
such Initial Financing shall be obtained through a bank, savings and loan association, insurance
company, pension fund, publicly traded real estate investment trust, governmental agency, or
charitable organization engaged in making residential real estate loans ("Senior Lender or
(b) for the sole purpose of refinancing an owner's Initial Financing "Refinancing",
provided such Refinancing shall be limited solely to. the outstanding principal -balance owed
under the Owner's Initial Financing, and shall not include any additional amounts, such as fees or
costs associated with such Refinancing or additional funds disbursed to the Owner and
refinancing shall not include secondary financing such as subordinate deeds of trust or home
equity loans,
7.2 Subordination. Pursuant to California Health Safety Code Section 33334.14,
Commission may enter into a subordination agreement with a Senior Lender to subordinate the
provisions of this Agreement and its lien under the Commission Note and Commission Deed of
Trust to the Senior Lien if Commission is able to male a finding, based on substantial evidence,
that an economically feasible alternative method of financing or refinancing on substantially
comparable terms but without subordination is not reasonably available. There shall he no
subordination of this Agreement unless Commission eaters into a subordination agreement with
a Senior Lender to subordinate the provisions of this Agreement and its lien under the
Commission Note and Commission Deed of Trust to the Senior Lien provided that Owner and
the Senior Lender shall agree to the Default and Foreclosure provisions set fob in Section 7. 3,
below, or other alternative provisions acceptable to the Commission in its sole discretion.
7.3 Default and Foreclosure.
(a) C shall record a request for notice of default and any notice of sale
under any deed of trust or mortgage with a power of sale encumbering the Property pursuant to
California Civil Code Section 2924b. Whether or not a request for a notice of default is
recorded, the Owner shall provide a true and correct copy of any notice of default to Commission
itbin three, business days of the Owner's receipt thereof.
(b) In the event of default and foreclosure, Commission shall have the sane right as
the owner to cure any defaults, reinstate the loan (not less than a specified number of tinges to be
set forth in the subordination agreement between the Commission and the Senior Lender or
redeem the Property prior; to foreclosure sale or the acceptance of a deed in lieu of foreclosure by
the Senior Lender, Such redemption shall be subject to the same fees, charges and penalties that
could otherwise be assessed against the owner. Nothing herein shall be construed as creating
any obligation on the part of Commission to cure any such default, nor shall this right to cure and
Exhibit D
1345801v1B 2194 2/003 9 1-
redeem operate to extend any time limitations in the default provisions of the underlying deed of
trust or mortgage.
(c) if the trustee set forth in Senior Lender's deed of trust sells the Property at
foreclosure sale the proceeds shall be delivered in the following priority to the extent funds are
available:
(1) first, to pay all suns due and owing under the Senior Lien, including
ithout limitation the principal aurnount, interest, fees and costs of sale;
(1i) second, to pay to Commission all amounts owing under the Commission
Note and Commission feed of Trust, including the initial principal amount and
any other amounts owed pursuant to the Commission Note, except the
Commission's Shared Appreciation;
(111) third, subject to the provisions of Section. 6.7, to pay the Owner the
following:
1. amount of down payment paid by Owner at the time owner
acquired the Property;
2. amount of installment payments of mortgage principal repaid on
Owner's Senior Lien by owner prior to the foreclosure sale;
3. amount of escrow fees, transfer taxes, recording fees, brokerage
commissions and similar costs of acquisition actually paid b
Owner;
4. amount of money paid by owner for Capital Improvements to the
Property; and
5. aniount equal to the "legal rate of interest" as defined in the
Commission tote on cash payments by owner as identified in 1
through above.
(iv) fourth, to pay any remaining balance pro --rata in the percentages
determined in accordance with Sections 6.3 (a) and (b), to the Commission for the
amounts owing under the Commission bete for the Commission's Shared
ppreclatlon, and to the owner or the person or persons legally entitled thereto,
as required by law.
d) If this Agreement is subordinated to the Senior Lender under Section 7.2, them
except as otherwise expressly provided in the subordination agreement, this Agreement shall
remain in full force and effect upon completion of any such foreclosure or acceptance of any
deed in lieu of foreclosure by Senior Lender, and any party acquiring title to the Property
through a trustee's sale, judicial foreclosure sale or deed in lieu of foreclosure shall receive title
subject to the provisions of this Agreement including the Commission's Purchase Option.
Exhibit D
1345801vlB 21942/0039 -16-
(e) By taping a loan from a Senior Lender, each owner represents that it has provided
Senior Lender the necessary consent and authorization to provide Commission with a monthly
report of the payment status of Owner and all other financial information concerning owner to
Commission. In addition, each Senior Lender is hereby authorized by each owner to furnish a
monthly report of the payment status of Owner and all other financial information concerning the
Owner to Commission.
(f) Except as otherwise expressly provided in a Commission- approved subordination
agreement, by making a loan to owner, Senior Lender grants to Commission the option to
purchase the Senior Dien from Senior Lender at any time after the filing of a notice of default
under the Senior Lien but prior to consummation of the foreclosure or the giving of a deed -in-
lien of foreclosure. Pursuant to this subsection, Commission may purchase the Senior Lien from
Senior Lender for an amount equal to the entire indebtedness secured by the Senior Lender's
deed of trust. Commission may exercise this option by giving Senior Lender~ written notice of its
intent to do so A) with respect to a foreclosure, at any time prior to the filing of a notice of sale
under the Senior Lien, and B) with respect to a deed -in -lieu of foreclosure, within ten 10 days
after receiving written notice from Senior Lender of its intent to accept a deed-in-lieu of
foreclosure with respect to the Property. Upon receipt of such written notice from the
Commission, Senior Lender shall promptly give Commission a written statement setting forth
the amount of the total indebtedness secured by the Senior Lender deed of trust, which shall be
the purchase price for the Senior Lien, and a copy of the policy of title insurance insuring the
priority and validity of the Senior Lender deed of trust. within ten 1 days after Commission
gives such written notice, Commission shall establish an escrow at such title company and
concurrently therewith give Senior Fender written notice thereof, and Commission shall deposit
the purchase pace in such escrow. within fifteen 1) days after Senior Lender's receipt of
notice of the opening of the escrow, Senior Lender shall deposit in the escrow the promissory
note evidencing the Senior Lien endorsed in favor of Commission, the original of the Senior
Lender deed of tryst, an assignment of the Senior Lender deed of trust duly executed by Senior
Lender and in recordable form and all other documents, instruments, agreements, certificates and
other items that evidence, secure or otherwise relate to the Senior Lien. The escrow holder shall
be instructed to close the escrow within two 2) business days after receipt of all such items and
upon such close of escrow to issue to Commission a CLTA Form No. 104.1 endorsement to the
title Policy, showing Commission as Senior Lender's assignee with respect to the Senior Lender
deed of trust, Senior Lender and Commission shall execute and deliver escrow instructions and
such other documents as may be necessary or appropriate in connection with such escrow and to
implement the intent hereof. Commission shall pay the escrow fees (irrespective of whether the
escrow closes), recording fees and the premium for the CLTA Form Igo. 104.1 endorsement.
ARTICLE
MISCELLANEOUS
8.1 Io tion Assignment Liability. In no event shall Commission in any way
become liable to owner nor become obligated in any manner to any other Party by reason of the
assignment of the Comirdssion's Purchase Option, nor shall Commission in any way be obligated
or liable to any Owner for any failure of Commission to purchase the Property or to comply with
the terms of the Commission's Purchasc Option.
Exhibit D
148011E 2942/0039 17
8,2 Distribution of Insurance and Condemnation Proceeds. If the property is
condemned or the improvements damaged or destroyed, all proceeds f rom insurance or
condemnation shall be distributed in accordance with the CC& s or, if not covered by the
CC& 's, to Owner or its successors or assigns, for purp of restoring or replacing the
Property, unless the Senior Lender deed of trust or, if not covered by the Senior Lender Deed of
Trust, the Commission Deed of "gust provides otherwise, in which case the Senior Lender Deed
of Trust of if not covered by the S enior Lender Deed o f T rust, the Commission Deed of Trust
shall control.
8 .3 Maintenance and Use. Each owner shall maintain the Property, including all
structures an landscaping �ai nd clean Co itron" r.t accordance with .the
:CC& s'",` if applicable]. Each Owner shall maintain the interior of the single family dwelling
unit on the Property in a clean condition and all appliances and fixtures in good working order.
The Property shall be used and occupied by each owner solely for residential purposes, and in
addition to the residential purpose may also be used for any accessory uses that comply with the
provisions of the City's Zoning ordinance, s it may be amended from time to time, and the
provisions of the Grant Deed, the OPA [Insert if c l i le: and th ,..,C No owner
shall grant use of, rent or lease all or any part of the Property, but shall occupy the Property as its
principal residence as provided in Article 2.
8.4 Default Remedies. In addition to any other rights or remedies set forth in this
Agreement or allowed by law or equity, in the event of a default by an owner of any of the
Owner's obligations under this Agreement, Commission may apply to a court of competent
jurisdiction for specific performance of this Agreement, for an injunction prohibiting a proposed
Sale or Transfer in violation of this Agreement or for enforcing the Commission Purchase
Option, or for any such other relief as may be appropriate (including, but not limited t o,
monetary damages),
8 5 Attorneys' Fees and Costs If any action is brought to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs,
C ontrolling reement Owner covenants that it has not executed, and will not
execute without the Commission's prior written approval, an other agreement with provisions
contradictory to or in opposition to the provisions of this Ag reement.
8.7 Se erabilil If any one or more of the provisions contained in this Agreement for
any reason shall be held to be invalid, illegal or unenforceable in any respect, then such provision
or provisions shall be deemed severable from the remaining provisions contained in this
Agreement, and this Agreement shall be construed as if such invalid, illegal or unenf
provisions had never been contained herein.
8 .8 Time of the Essence. Time is o the essence of this entire Agreement. Whenever
the time for performance falls on a day which is not a business clay, such time for performance
shall be extended to the next business day.
8 .9 Notices. All notices, demands, requests for approval and other communication
provided for in this Agreement shall be in writing and shall be deemed received if sent to the
addresses set forth below a on the date of delivery when personally delivered, b one business
Exhibit D
1345 1 Y I B 21942!0039 -18
day after deposit with a reputable overnight courier or deliver earvice with all deliver charges
paid; or c date of receipt by party if deposited in the United States first class mail, postage
prepaid, registered or certified, return receipt requested. Any party may change its address b
notice delivered in the manner specified above.
If to Commission: Community Improvement Commission of
the City of Alameda
c/o Housing Authority
701 Atlantic Avenue
Al CA 94501
Attention: Executive Director
If to owner; At the Property address of the owner
8.10 Covenants running with the Land Pursuant to Health Safety Code
Section 33334.3 and 33336, all provisions of this Agreement, including the benefits and burdens,
are equitable servitudes, run with the land and are binding upon the heirs, successors, assigns and
personal representatives of the owner hereto and inure to the benefit of Commission and its
permitted successors and assigns, The covenants benefit and bind Commission, the Property,
and all owners and successor owners thereto. Each and every contract, deed or other instrument
covering, conveying or otherwise transferring the Property or any interest therein shall
conclusively be held to have been executed, delivered and accepted subject to this Agreement
regardless of whether the other party or Parties have actual knowledge of this Agreement.
8,11 Default If an owner defaults in the performance or observance of any covenant,
agreement or obligation of owner set forth in this Agreement, and if such default remains
uncured for a Period of 30 days after written notice has been given by the Commission or if such
cure reasonably takes longer than 30 days, if such cure has not been commenced within the 30--
day period and thereafter diligently prosecuted to completion), or in the event -an owner has
provided false information or documentation required in connection with the purchase or sale of
the Property, then the Commission may declare an "Event of Default" has occurred, and
Comrm'ssion may exercise any or all of its rights or remedies under this Agreement, including
without limitation any or all of the following:
a by n r suit, action or proceeding at law or in equity, require the owner to perform
its obligations and covenants un der this Agreement or enjoin any unlawful acts;
b) by taping such other action at law or in equity as may appear necessary or
desirable to enforce the owner's obligations, covenants and a.grec eats; or
c) by exercising the C ommission's Purchase option pursuant to Article 5.
8.12 Construction. The rule of strict construction does not apply to this Agreement.
This Agreement shall be given a Treasonable construction t o create a valid and enforceable
C ommission Purchase option and to prevent any Prohibited Transfer or Prohibited Sale or an
use of the Property in violation of this Agreement. whenever the context and construction so
requires, all words used in the singular shall be deemed to be used in the plural, all masculine
shall include the feminine and neuter, and vice versa.
Exhibit D
1345801vlB 2194210039 19
8.13 ermination of.Agreement This Agreement shall terminate as to the Property
either a as a result of foreclosure through a trustee's sale, a ,judicial foreclosure sale or deed in
lieu of foreclosure, orb an Extraordinary Sale pursuant to Section 6.5. Upon termination of
this Agreement, on request of the then record owner of the Property, Commission shall execute,
acknowledge and record a termination of this Agreement. To the extent permitted by lair, any
unfulfilled obligations of any owner shall survive the termination of this Agreement but this
Agreement shall no longer affect title to the Property,
8.14 Indemnification. Each Owner agrees to indemnify and hold harmless
Commission. and its respective officers, directors, employees and agents from and against all
liabilities, losses, claims, damages, judgments, costs and expenses (including, without limitation,
reasonable attorney's fees) incurred by Commission arising out of or relating to any action by the
Owner. Each Owner agrees that if any claims, demands, suits or other legal proceedings are i
made or instituted by any person against Commission which arise out of any of the matters
relating to this Agreement, the owner shall cooperate fully with Commission in the defense or
other disposition.
8.15 Entire Agreement- and Modifications. This Agreement, together with the exhibits
attached hereto, represents the entire agreement between the parties with respect to the subject
matter set forth herein and replaces and supersedes any and all prior or contemporaneous oral or
written agreements, subject to Section 8.16. This Agreement may be modified only in a writing
duly signed by the affected owner or Owners and an authorized agent of Commission. The
modifications shall be effective when recorded in the official Records of A.laineda County,
California.
8.16 Modification of Covenants. Each owner hereby agrees as follows:
(a) To the extent any amendments to the California Community Redevelopment elopment Law
(Health Safety Code Sections 33000 et seq.) retroactively impose requirements upon the
ownership or operation of the property more restrictive than those imposed by this Agreement,
and if such. requirements are applicable to the Property, this Agreement shall be deemed to be
automatically amended to impose such additional or more restrictive requirements.
(b) To the extent any amendments to the California Community Redevelopment Lair
impose requirements upon the ownership or operation of the property less restrictive than those
imposed by this Agreement, this Agreement may be amended or modified to impose such less
restrictive requirements by Commission, at its sole discretion.
c) Each Owner and Commission shall execute, deliver and, if applicable, record any
and all documents and instruments necessary to effectuate .the intent of this Section 8.16, and
each owner hereby appoints the Commission as its true and lawful attorney -in -fact to execute,
deliver and, if applicable, record on behalf of the Owner and Commission, as applicable, any
such document or instrument in such form as may be zripproved in writing by the Commission if
the owner defaults in the performance of its obligations under this subsection c.
8.17 Term This Agreement shall become effective upon its execution and delivery and
unless sooner terminated in accordance with Section 8.13, shall remain in full force and effect
for fifty -nine years from the date of recordation of this Agreement.
Exhibit D
1345 801 v 1 B 21942/0039 -20-
8.18 No Discrimination. Notwithstanding ithstanding the following, owner acknowledges under
this Agreement that it is expressly prohibited from leasing the Property and is required to occupy
the Property as its principal residence at all tunes:
Owner covenants, by and for itself and any successors in interest,, that there shall
be no discrimination against or segregation of any person or group of persons on account of any
basis listed in subdivision a or d of Section 12955 of the Government Code, as those bases are
defined in Sections 12926, 1 292'6.1, subdivision rn and paragraph 1 of subdivision p of
Section 12955, and Section 12955,2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Participant, itself or any
person claiming under or through it, establish or permit any such practice or practices of
discrimination or segregation with preference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, subleases or vendees in the Property.
All deeds, leases or contracts
thereOD or any part thereof, shall contain
nondiscrimination and nonsegregation clauses:
made relative to the Property, the is pro el ent
or be subject to substantially the following
(a) In deeds:
1. "The grantee herein covenants, by and for himself or herself, his or
her heirs, executors, administrators, and assigns, and all persons
claiming under or through them, that there shall be no
discrimination against or segregation of any person or group of
persons on any basis listed in subdivision a or d of Section
12955 of the Government Code, as those bases are defined in
Sections 12926, 12926.1, subdivision m and paragraph. 1 of
subdivision p of Section 12955, and Section 12955.2 of the
Government Code, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein conveyed, nor
shall the grantee, himself or herself or any person claiming under
or through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees,
subtenants, subleases or vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
2. Notwithstanding paragraph 1,, with respect to familial status,
paragraph 1. shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the Government Code.
With respect to familial status, nothing in paragraph 1. shall be
construed to affect Section 5 1 .2, 51.3, 51.4, 51.10, 51.11 and 799.5
of the Civil Code relating to housing for senior citizens.
Subdivision d of Section 51 and Section 1360 of the Civil Code
and subdivision (n), (o), and p of Section 12955 of the
Government Code shall apply to paragraph 1.
Exhibit D
l 4 s01 i B 21942/003 -21-
(b). In leases: "The lessee herein covenants, by and for himself or herself", his
or her heirs, executors, admirdstrators and assigns, and all persons claiming under
or through him or her, and this lease is made and accepted upon and subject to the
following conditions-.
1. That there shall be no discrimination against or segregation of any
person or group of persons on account of any basis listed in
subdivision a or of Section 12955 of the Government Code,
as those bases are defined in Sections 12926, 12926.1, subdivision
(m) and paragraph 1 of subdivision p of Section 12955, and
Section 12955.2 of the Government Code, in the leasing,
subleasing, transferring, use, occupancy, tenure or enjoyment of
the land herein leased, nor shall the lessee, himself or herself or
any person claiming under or through. hire or her, establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, subleases, subtenants or vendee
in the land herein leased,"
2. Notwithstanding paragraph 1., with respect to familial status,
paragraph 1. shall not be construed to apply to housing for older
persons, as defined in Section 12955.9 of the Government Code.
With respect to familial status, nothing in. paragraph 1. shall be
construed to affect Sections 51.2, 51. 3, 51.4, 51.10 51.11 and
799.5 of the Civil Code, relating to housing for senior citizens.
Subdivisions d of Section 51 and Section 1360 of the Civil Code
and subdivision n, o, and p of Section 12955 of the
ovemment Code shall apply to paragraph 1.
0% In contracts: "'There shall be no discrimination against or segregation of
any person or group of persons on any basis listed in subdivision a or d of
Section 12955 of the Government Code, as those bases are defined in Sections
12926, 12926.1, subdivision m and paragraph l of subdivision p of Section
12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee,
himself or herself or any person claiming under or through hire or her, establish or
permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subleases, subtenants or vendees in the land." The contract shall further specify
that the foregoing provisions shall be binding on the contracting party or parties,
any subcontracting party or parties or other transferees under the instrument.
8.1-9 CoMpliance Monit Owner acknowledges and agrees that Commission is
obligated to monitor compliance with this Agreement on an annual basis. owner agrees to
cooperate with Commission's annual monitoring requirements by supplying true, correct and
complete annual owner information as required by Commission's Affordable Housing
Ownership Program Qualified Household Annual Update Questionnaire.
Exhibit r
1 345801 v 1 B 21942YO03 9 -22-
8. 20 Exhibits. The following exhibits are attached to this Agreement and incorporated
herein by this reference:
Exhibit A: Property eseription
Exhibit Notice of Intent to Transfer
Exhibit C: Notice of Intent to Sell
Exhibit I: Notice Extraordinary S aIe
Exhibit E: Commission Dote
Exhibit F: Commission Deed of Trust
Exhibit Disclosure, Aer owled ment and Assumption. Agreement
IN WITNESS THEREOF, the parties have executed this Agreement as of the year and
date first written above.
COMMISSION:
COMMUNITY IMPROVEMENT
COMMISSION of THE CITY OF
ALAI EI A, a public body corporate and
politic
Lo
Executive e Director
[Signawre must be notarized
OWNER(S):
[Sign ature m asst be notarized]
[Sig attere must be notarized]
Exhibit
1345801v113 21942/0039
1 -0 5 4 24 L1 1 1- #1
Property Description
Exhibit A to Exhibit D
1 4 S01v.[B 2194210039
EXHIBIT
NOTICE of INTENT To TRANSFER
Date
To: Community Improvement Commission
of the City of Alameda
c/o Housing Authority
701 Atlantic Avenue
Alameda, CA 94501
Attention: Executive Director
The undersigned owner of that certain real property located in
larneda, California, commonly known as tins address] (trio "Unit hereby
notifies you of its intent to Transfer in compliance with Section 3. 2 of the Affordability,
Restrictions on Resale and option to Purchase Agreement (the Age' ]C7C1ent f The reason or
circumstances relating to such transfer are as follows:
Any additional information regarding the
proposed transferee shall be provided to you immediately upon request. The undersigned
acknowledges that all applicable time periods under the Agreement commence only upon
omimisslonts receipt of this notice. The undersigned ed further acknowledges and agrees that any
such transfer shall be subject to the provisions of the Agreement.
Owner
Exhibit B to Exhibit; D
1 345 801 v I B 1942/0039
EXHIBIT C
NOTICE of INTENT T 1 SELL
Date
To: Community Improvement Commission
of the City of Alameda
o Housing Authority
701 Atlantic Avenue
Alameda, CA 94501
Attention: Executive Director
The undersigned owner of that certain real property located in
Alameda, California, commonly known as [insert address] the "Unit
hereby notifies you of its intent to Sell the Unit in compliance with Section 4.1 of the
Affordability, Restrictions on Resale and Option to Purchase Agreement (the "Agreement"). The
undersigned acknowledges that all applicable time periods under the Agreement commence only
upon Commission's receipt of this notice.
Owner
Exhibit C to Exhibit
1345 01 v I B 21942!0039
EXHIBIT
NOTICE EXTRAORDINARY SALE
Date;
To: Community Improvement Commission
of the City of Alameda
c/o Mousing Authority
701 Atlantic Avenue
Alameda, CA 94501
Attention; Executive Director
The undersigned "owner" is the owner of that certain real
property located in Alameda, California, commonly known as [insert address
("Unit"). On 20_} owner provided Commission with written notice of its
intent to sell the Unit. Commission has failed to identify an Eligible Buyer in accordance with
Section 4.1 of the Affordability, Restrictions on Resale and option to Purchase Agreement
"Agrer,ment") and the Commission has failed to exercise the Commission's Purchase option
pursuant to Article 5, or failed to close escrow within the time set forth in Section 5. 4 of the
Agreement. Accordingly, Owner hereby notifies Commission of its intent to make an
Extraordinary Sale of the Unit in accordance with Section 6. 2 of the Agreement. owner hereby
requests that Commission calculate the Market Value of the Unit based on an Appraisal in
accordance with Article 6 of the Agreement, Owner hereby acknowledges that Commission
shall retain Commission's Purchase Option until the time that Owner has accepted in writing an
offer to purchase the Unit from a buyer, and that all applicable time periods for an Extraordinary
Sale under the Agreement commence only upon Commission's receipt of this Notice.
Owner
Exhibit D to Exhibit D
145011B 21942/0039
EXHIBIT
Principal Amount:
o
Alameda, California
FOR VALUE RECEIVED, ("Maker"
promises to pay the COMMUNITY H\4PROVEI ENT COMMISSION of THE CITY OF
ALAME A ("Commission") the principal sung of
DOLLARS Principal Amount"), plus a contingent deferred amount equal to
the Commission's Shared Appreciation as calculated and payable under Section 6, below, any
additional amounts due and oaring pursuant to Sections 8 and 10, below, any additional amounts
due and owing pursuant to the Deed of Trust (as defined below), and any additional amounts due
and owing as permitted by lair.
1. UNIT. The "Unit" is that certain real property commonly known n as
insert addres Alameda, California, and more particularly
described on Exhibit A., attached hereto and incorporated herein, which together with all
improv nl nts located thereon. is referred to in this promissory note "Note") as the "Unit." The
Unit is part of a residential development known as [in.sert project,
nam6j .11 ['Project").
2. AFFORDABILITY COVENANTS, RESALE RESTRICTIONS The Unit, along
with certain other residential lots in the Project, is part of an affordable housing program
designed to create, preserve, maintain and protect housing for persons of low and moderate
income as described in and pursuant to an owner Participation 'Agreement between the
Commission and ("Participant") dated "oP Under the
PA, the Commission provided Participant with certain financial assistance ("Commission
Assistance necessary to make it economically feasible for Participant to sell the Property to
Haber at-an Afford-able Housing Cost, as defined below, subject to the covenants, conditions,
restrictions and option to purchase set forth herein, haler assumes title to the Unit subject to
that certa.in Affordability, Retractions on Resale and option to Purchase Agreement, recorded on
0 as Document Igo, 1) in the official Records of Alameda County,
California ("Resale Restrictions"). Capitalized terms used herein and not defined in this tote
shall have the meanings set forth in the Resale Restrictions.
3. COMMISSION'S CONTRIBUTION. Based on an appraisal of the Unit, the
Maker and Commission agree that the fair market et value of the Unit at the time the Unit is
acquired by Maker is DOLLARS the "Market rket Value "f
Maker purchased the Unit at a below fair market et value affordable price in the amount of
DOLLARS (the "Initial Price"). The difference between
the Market Value and the Initial Price, equal to DOLLARS
represents the amount by which the purchase price of the Unit has been reduced
as a result of the Commission's cash investment in the Project, including the Unit, and wbic
amount is reflected above in the Principal Amount of this Note.
FORM OF COMMISSION NOT
(Shared Appreciation Loan)
Exhibit E to Exhibit I
l 345801 v l B 1 942/003
4. DEED of TRUST, Payment of this Note is secured by a deed of trust,
assignment of rents, security agreement and fixture filing (the "Deed of Trusty) from Maker er ire
favor of Commission, which Decd of Trust is dated concurrently herewith and recorded against
the Emit.
REPAYMENT of NOTE. There shall be no payments due under this Note,
unless payments are otherwise duo pursuant to provisions of Sections c and of this Dote.
All amounts due under this Note shall be assumed, repaid and/or cancelled, as follows:
a. In the event of a Permitted Transfer pursuant to Section 2.2 and Article
of the Resale restrictions, the Transferee shall assume the rights and obligations of
Maker under this Note and the Deed of Trust securing this rote.
b. In the evert of a Permitted Sale to are Eligible Buyer pursuant to Section
2.3 and Article 4 of the Resale Restrictions, or upon acquisition of the Unit by the
Comrm*ssion pursuant to the Commission's Purchase option provided in Section 2.3 and
Article 5 of the Resale Restrictions, tlien this Note, and all amounts due and owing to the
Coin fission hereunder, shall be. cancelled. In such event, the Commission shall execute
and deliver for the benefit of Maker any documents necessary to effectuate such
cancellation and release of the lien under this Dote and the Deed of gust.
C. In the event of an Extraordinary Sale to a non Eligible Buyer pursuant to
and in compliance with the requirements of Section 2.3 and Article 6 of the Resale
Restrictions, Maker er shall pay to the Commission, through escrow and from the proceeds
of such sale, all amounts owing under this Note and Deed of Trust, including the initial
Principal Amount of this Note and any other amounts owed pursuant to this rote, except
for the contingent deferred amount of the Commission's Shared Appreciation which shall
be paid to the Commission in accordance with Section 6 of this rote and Section 6.4 of
the Resale Restrictions. Upon receipt of such payments, the Commission shall execute
and deliver any documents necessary to ef=fectuate such cancellation and release of the
lien under this Note and the Deed of Trust.
d. In the event of a default by Maker under this Dote or under the Deed of
Trust, all amounts owing under this Note and Deed of Trust, including the initial
Principal Amount and any other amounts owed pursuant to this Note, except for the
contingent deferred amount of the Commission's sion's Shared Appreciation, shall be due and
payable in full, at Commission's option, without notice or- demand. The Commission's
Shared Appreciation shall be due and payable to the Commission in accordance with
Section 6 of this Dote and Section 6. 4 of the resale Restrictions. If Maker defaults in the
performance or observance of any agreement or obligation of Maker set forth in this Mote
or the heed of Trust, and if such default remains uncured for a period of 30 days after
written notice has been given by the Commission or if such cure reasonably tales longer
than 30 days, if such cure has not been commenced within the 3 period and
thereafter diligently prosecuted to completion), then the Commission may declare an
"Event of Default" has occurred, and Commission may exercise any or all of its rights or
remedies under; this Note and the Deed of Trust.
1345 80 1 v 1B 21942/0039
6. COMMISSION'S SHARED APPRECIATION. In the event of an Extraordinary
Sale pursuant to and in compliance with the requirements of Section 2.3 and Article 6 of the
Resale Restrictions or in the event of a default by Maker under this Note or under the Deed of
Trust, Commission n shall receive, and Owner shall to pay to Commission in addition to the
unpaid Principal Amount of this Note, a share of the appreciation "Commission's Shared
Appreciation" in the value of the Unit between the time the Unit was acquired by Maker and the
Extraordinary Sale in accordance with Califomia Civil Code Section 1917,006 and as provided
for herein. The distribution of any appreciation-in the value of the Unit to Commission shall be
determined based on the difference between the Appraisal prepared at the time the Unit was
acquired by Maker, and the Extraordinary Sale Price. The distribution of any appreciation in
value shall be shared by Maker and the Commission in proportion to the amount of initial equity
contributed by each party as follows.
a. The Commission's initial equity contribution shall equal the Principal Amount Of
this Dote (which, in accordance with Section 3 of this Dote, shall be equal to the
difference between the Market Value at the time of acquisition by Maker and the Initial
Price).
K Maker's initial equity contribution shall be equal to the aggregate amount nt o the
following;
L amount of the down payment paid by Maker at the time faker acquired
the Unit; and
ii. escrow fees, transfer taxes, es, recording fees, brokerage commissions and
similar costs of acquisition actually paid by Maker.
FExample of Maker's initial equity If, i at the time Maker acquired the Unit, the Maker
paid a down payment equal to $18,000 arid, escrow Fees, transfer taxes, recording fees,
brokerage commissions and similar. costs of acquisition actually paid by Maker equal
$2,000 resulting in a total Maker equity amount of $20,000, and (ii) the Principal Amount
of this Note were $80,000, then (iii) the owner would receive 20% of any remaining
appreciation value available for distribution, and the Commission would receive ova of
any remaining appreciation value available for distribution at the time of an
Extraordinary Sale.]
C. The Commission's right to receive the Commission's Shared Appreciation shall be
subject to the Maker's superior right to receive repayment of the following items as
described in California Civil Code Section 1917.006(a)(3) and the requirements of
Section e below;
i. amount of the down pay.ent paid by Maker at the time Maker acquired
the Unit;
I amount of installment payments of mortgage principal repaid to a Senior
Lender by Maker prior to the Extraordinary Sale;
iii. amounts of escrow fees, transfer taxes, recording fees, brokerage
commissions and similar costs of acquisition actually paid by Maker;
iv. mone paid by Maker for Capital Improvements to the Unit; and
R
1401v1B 21942/0035
V. amount equal to the "legal rate of interest (as defined herein in Section
6(d) below) on cash payments by Maker as identified in i through iv
above.
d. Because there is no generally accepted definition of "legal rate of interest, as the
tern is used in Civil Code Section 1917. o a Maker and Commission stipulate and
agree that the "legal rate of interest for purposes of this Dote shall be calculated using
the annual compound interest rate for the Long- Term Applicable Federal late AF as
defined In 26 U.S.C. Section 1274(d) and as is issued by the United States Internal
Revenue Service monthly, as then in effect at the time this Dote is executed. Based on
the foregoing, the legal l °ate of interest for purposes of this Note is stipulated to be
percent.-( per annum, compounded annually.
e. Prior to payment to Maker of the amounts set Forth in Section 6(c) of this Dote,
Maker shall submit evidence not less than 30 days prior to the first scheduled date for the
close of escrow or foreclosure sale to allow the Commission to verify the evidence
provided by Maker to the reasonable satisfaction of the Commission of th Maker's initial
equity as set forth in Section b and Maker's actual payments as set forth in Section
6(c). To the extent such evidence is not timely submitted by faker; to the reasonable
le
satisfaction of Commission, such costs shall be deemed waived by the Maker and Maker
shall not be entitled to have such costs, as applicable, included as part of Maker's initial
equity under Section 6b or to receive payment of the sums set forth in Section 6
herein. Commission acknowledges that such evidence may include, by way of e xample
and not limitation, Owner's original closing statement, bank statements, copies of
cancelled checks, and invoices from contractors.
7. PAYMENTS Payments shall be made payable to the Community Improvement
Commission of the City of Alameda, 2263 Santa Clara Avenue, Alameda, California 94501,
Attention: The place of payment may be changed from time to time as
Commission may from time to time designate in writing. Payments shall be made in lawful
money of the United States of America.
8. COLLECTION. This Note is secured by a Deed of Trust recorded against the
Unit. Maker ker agrees to pay all collection and enforcement costs, expenses and actor .e s' fees
paid or incurred by the Commission or adjudged by Court in any litigation or controversy
connected with this Note, or security for it, including but not limited to actions for declaratory
relief that the Commission is required to prosecute or defend and actions for relief based on
rescission, or actions to cancel this Note that the Commission is required to defend:
9. SHARED AFFRBCIATION LOAN. This Dote evidences a "Shared
Appreciation Loan as defined in California Civil Code Section 1917.006 and the parties
therefore intend this Note to be exempt from any usury limitations. Notwithstanding anything to
the contrary contained herein, to the extent the Commission's Shared Appreciation is deemed
interest (other than as permitted under California Civil Code Section 1917.006) and therefore
subject to limitation by usury law, that portion of interest in excess of applicable usury limitation
shall be forgiven.
134 801.viB 21.942/0039
lo. COSTS. Maker agrees to pay immediately upon demand all costs and expenses
of Commission including reasonable attorneys' fees:
a. If after default and the expiration of all notice and cure periods this Note is
pl aced in the hands of an attorney or attorneys for collection,
b. If after a default hereunder or under the Deed of Trust and after the
expiration of all notice and cure periods Commission finds it necessary or
desirable to secure the services or advice of one or more attorneys with
regard to collection of this Note against Maker, any guarantor or any other
party liable therefor or to the protection of its rights under this Note or the
Deed of Trust, or
C. If Commission seeps to have the Unit abandoned by or reclaimed from
any estate in bankruptcy, or attempts to have any stay or injunction
prohibiting the enforcement or collection of this Note or prohibiting the
enforcement of the Deed of Trust or any other agreement evidencing or
securing this Note lifted by any bankruptcy or other court.
If Commission shall be made a party to or shall -reasonably intervene in any action
or proceeding, whether in court or before any governmental entity, affecting the Unit or the title
thereto or the interest of the Commission under the Deed of Trust, including, without limitation,
any form of condemnation or' eminent domain proceeding, Commission shall be reimbursed by
Maker immediately upon demand for all costs, charges and reasonable attorneys' fees incurred by
Commission in any such case, and the sage shall be secured by the Deed of Trust as a further
charge and lien upon the Unit.
I L MISCELLANEOUS, US, This Note, the Deed of Trust and the resale Restrictions,
and any other documents executed by the parties relating thereto, embody the entire agreement
between the Commission and Maker for the Commission Loan and its terms and conditions. The
obligations of the Maker hereunder shall run with the land and be enforceable against Maker and
the successors and assigns of Maker approved in writing by the Commission. Except in the
event of a Permitted Transfer pursuant to Section 2.2 and Article 3 of the Resale le Restrictions,
Maker shall not assign or transfer any of its interest and obligations under this Dote without the
express prior written consent of Commission. The ommission, at its sole option, may negotiate
transfer or assumption of this Note. This Note may not be modified or amended except by an
instrument in writing executed by the parties sought to be bound thereby. This Note shall be
governed by and construed in accordance with the laws of the State of California. If any
provision of this Note shall be invalid, illegal or unenforceable, the validity, legcdity and
enforceability of the remaining provisions hereof shall not in any way be -affected or impaired
thereby.
13 45 801 v 1B 21 942!00 9
1Y Fa IN
Address:
Address:
1 345 801 v 1 B 1 942!0039
EXHIBIT
FORM OF COMMISSION DEED OF TRUST
The Commission Deed of Trust shall be a standard title company deed of gust with a rider in the
1 "m set forth bel w.
RIDER TO COMMISSION DEED OF TRUST
This Rider to Deed of 'Frost is executed by
("Trustor")for the benefit of the COMMUNITY IMPROVEMENT COMMISSION F THE
CITY OF ALAM DA ("Beneficiary").
1. This Deed of Trust also secures the obligations of the Tyr stor under that certain
Affordability, Restrictions on Resale and option to Purchase Agreement dated
and recorded on as Document Igo, in the Official Records of
Alameda County, California ("Agreement"), against the property encumbered by this Deed of
Trust. A default under the Agreement shall he considered a default under this Deed of Trust.
2. This Deed of Trust secures a Shared Appreciation Loan and Dote.
Trustor
Exhibit F to Exhibit D
14011E 2194210039
04 11 0UPINVOIC
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Community Improvement Commission
of the City of Alameda
c/o Housing Authority
701 Atlantic Avenue
Alameda, CA 94501
Attention: Executive Director
empt from recordi g, ees pursuant to
Cal. Gov't Code Section 27383
DISCLOSURE, ACKNOWLEDGMENT
E] T
AND
ASSUMPTION AGREEMENT
THIS AGREEMENT is made by and among g I'selleril or
"Transferor"), ("Buyer" or "Transferee") and the COMMUNITY
IMPROVEMENT OMMIS ION OF THE CITE' OF ALAMEDA ("Commission").
WHEREAS, Sell; is the current owner of the real property commonly known as insert
street address Alameda, California, more particularly described
on Exhibit A, which together with all improvements located thereon is referred to in this
Agreement as the "Unit"; and
WHEREAS, Seller wishes to sell, transfer and convey the Unit to the Buyer; and
WHEREAS, the Unit is subject to affordability restrictions applicable to the Unit as
described in the Affordability, Restrictions on Resale and option to Purchase Agreement,
recorded on 20 as Document No. in the official
Records of Alameda County, California (the "Resale Restrictions" which restricts the Unit from
being sold at its fair market value; and
WHEREAS, the Unit 1s being sold to Buyer subject to a Shared Appreciation Loan that
may result in the Buyer being obligated to pay a contingent deferred amount as discussed below
in Section 2; and
WHEREAS, the Buyer is purchasing, or otherwise acquiring, the Unit and will asinine
the obligations of an owner under the Resale Restrictions; and
WHEREAS, capitalized terms used herein and not defined in this Agreement shall have
the meanings set forth in the Resale Restrictions.
NOW THEREFORE, the parties hereto agree as follows:
Exhibit G to Exhibit D
14011B 2194/009
1. THE BUYER HEREBY A.CI NOWLED ES AND AGREES To THE
FOLLOWING,
a. THAT THE UNIT IS SUBJECT To THE RESALE RESTRICTIONS AND,
BUYER AGREES AS AN OWN. TO BE BOUND BY ALL OF THE CONDITIONS AND
COVENANTS CONTAINED IN THE RESALE RESTRICTIONS. THE UNIT IS PART OF
AN AFFORDABLE HOUSING PROGRAM OPERATED BY THE COMMISSION AND
DESIGNED TO CREATE, PRESERVE, MAINTAIN AND PROTECT HOUSING
AFFORDABLE To PERSONS OF LOW AND MODERATE INCOME. BUYER
ACKNOWLEDGES THAT IT HAS RECEIVED A COPY of THE RESALE RESTRICTIONS
AND UNDERSTANDS AND ACKNOWLEDGES THAT ITS RIGHT TO SELL THE UNIT
T FAIR MARKET VALUE IS VERY LIMITED, AND THAT, IN CERTAIN INSTANCES,
THE COMMISSION WILL HAVE THE OPTION TO PURCHASE THE UNIT FROM
BUYER.. 'T'HESE RESTRICTIONS WILL BE IN EFFECT UNTIL IF
BUYER SELLS THE UNIT IN VIOLATION of THE RESALE RESTRICTIONS, THE
COMMISSION IS ENTITLED TO EXERCISE THE COMMISSION'S PURCHASE OPTION
UNDER THE RESALE RESTRICTIONS.
THAT BUYER SHALL OCCUPY THE UNIT AS ITS PRINCIPAL
RESIDENCE FOR THE DURATION of ITS OWNERSHIP,
C. THAT THE UNIT WILL NOT NECESSARILY APPRECIATE IN VALUE
DURING THE DURATION of ITS OWNERSHIP, AND THAT THE RESALE PRICE (THE
ELIGIBLE BUYER PURCHASE PRICE AS DEFINED IN THE RESALE RESTRICTIONS)
MAY BE LESS THAN WHAT BUYER ORIGINALLY PAID FOR THE UNIT AND THUS
WHEN BUYER SELLS THE UNIT IT MAY RECEIVE LESS THAN IT PAID FOR THE
UNIT.
2.- Commission Note and Commission Deed of Trust.
a. YI Buyer is an Eligible Buyer, as provided in Section 4.1 of the Resale
Restrictions, the Buyer has concurrently with this Agreement executed a new Commission Note
and a new Commission Deed of Trust In favor of the Commission, iorn, as provided in Section 4.4 of
the Resale Restrictions. The Commission Note is in the initial principal amount equal to the
difference between veen the market value of the Unit and the Eligible Buyer Purchase Price being
paid for the Unit. The new Commission Note also provides for the payment to the Commission
I the Commission's Shared Appreciation in the event of are Extraordinary Sale under the resale
Restrictions; or
If Buyer is taking title through a Permitted Transfer, as provided in Section 2.2
and Article 3 of the Resale Restrictions, then Buyer hereby assumes the Commission Note and
the Commission Deed of Trust as provided for under Section a of the Commission Note and
Buyer agrees to be bound by a d subject to the provisions of the Resale Restrictions, the
CommissiQn Note and the Commission Deed of Trust.
3. The Commission hereby consents to the transfer of the Unit to the Buyer as ail
Eligible Buyer or to the Transferee under a Permitted Transfer within the meaning of the Resale
Restrictions.
14011E 21942/0039
4 All questions with respect to the interpretation of this Agreement, and the rights
and liabilities of the parties hereto, shall be governed by the laws of the State of California.
5 This Agreement shall inure to the benefit of, and shaIJ be binding upon, the
assigns, successors in interest, personal representatives, estates, heirs and legatees of each of the
parties hereto.
6. Buyer hereby grants to Commission an irrevocable power of attorney coupled
with an interest to act on Buyer's behalf to execute, acknowledge and deliver any and all
documents relating to the Commission's Purchase Option under Article 5 of the Resale
Restrictions,
7. This Agreement and the mission's lien under the Prorli sor r tote and Deed
of Trust shall be subordinate to that certain deed of trust in favor of
recorded concurrently herewith, subject to the conditions set forth in Article 8 of the
Resale Restrictions,
Executed on
Dated:
Dated;
2 at Alameda, California.
SIT:
Print name:
BUYER:
Print name:
-NI-
1345 80 1 v I B 21942/0039
COMMISSION.
Dated:
COMMUNITY IMPROVEMENT ENT C M ISSI I
F THE CITY OF ALAMEDA
B
Print name:
ATTEST:
M l
13 45 80 1 v I B 21942/0 039
Its: Executive Director
NOTARY ACKNOWLEDGMENTS
[TO BE INSERTED]
.1345801vlB 2194210039
EXHIBIT
LEGAL DESCRIPTION OF THE UNIT
All that certain real property located in the City of Alameda, County of Alameda and mor
particularly described as Lot as shown on th certain final subdivision reap entitled
if ,I recor on 20 as Document No
in the official Rewards of Alameda County.
14011] 21942/0039
Reduced Densit AlternatIve MMRP
EXHIBIT 7: MITIGATION MONITORING AND REPORTING PROGRAM (MMRP)
Monitorin
Implementation Monitorin and Monitorin
Miti Measures Adopted as Conditions of Procedures Responsibilit Reportin Schedule
Approval Action
'E" _T
W�ITT P i i'd ht i e V'� P i t. i i I Kr zi r Vt I U" i ha 1: i F: i t i i i K". k-'
MMRP 1
'M ';4.
t' J ff. n
V
MM B- a. Prior to project occupanc the pro
Applicant will draft
Cit of Alameda
H will
Prior to
applicant shall put into place a Cit
Transportation
Demand
Department of
Public Works
provide
annual
occupanc of first
unit, TDM
Transportation Demand Mana pro with the
Mana
monitorin
pro must be
g oal of reducin the number of peak hour-trips by
pro that
reports to the
approved b the
10 percent. This wi I I inclu the followin mea sures:
adhere s to all
cit
cit
specifications in
e Establish a Boatworks Home Owners Association
this measure
Annually
thereafter, the
(H OA) and CCRs for the pro
Department of
H must
Public Works
provide
e Assess the HOA an annual fee in an amount
(DPW) will
monitorin-
necessar to provide the followin strate
approve TDM
reports with an
pro
recommendations
Eas pro (unlimited transit pass,
Applicant will
to revise pro
to improve trip
usable on AC Transit buses), two passes per
establish a
reductions.
unit, additional passes per unit for residents ma
Boatworks Home
be purchased at cost
Owners
Association (HOA)
Bic facilities in each unit;
and CC.
One car-share membership per residential unit
and
Provide annual fundin for transportation
coordination services includin but not limited
to, promotional information packa and
plannin services re available
transportation options, and annual monitorin
reports to Cit re effectiveness of
pro and recommended enhancements to
meet 10% reduction g oal.
MM B-4: The project applicant shall restripe the
Applicant shall
Cit of Alameda
10011
Prior to 1 00th
Blandin Avenue approaches (eastbound and
provide
improvement plan
Public Works
Department
Buildin
Buildin Permit
westbound} at Park Street to provide left turn pockets,
for DPW review
Permit
modif the traffic. si to be full actuated, provide
and approval and
protected left -turn phasin modif the traffic control at
complete the
the private drivewa of the Waters Ed Nursin Home
improvement prior
to stop-si control, include audible pedestrian push
to occupanc of
buttons and pedestrian count down heads, and
the final 100
housin unit.
optimize the si timin to improve the flow of traffic
without causin a si impact to pedestrian or
transit level of service.
MMRP 1
Mitigation Monitoring and Reporting Program
IRP
Boatworks Residential Project
Mitigation Monitodog Program
Monitoring
Implementation tin
i unit ring
and
Monitoring
Mitigation Measures Adopted as Conditions of
Procedures
Responsibility
Rep ruing
Schedule
Approval
Action
MM B The project applicant and construction
Project Applicant
City of Alameda
City of
Prior to issuance
contractor(s) shall develop a construction management
and its
Public Works
Alameda
of building or
plan for review and approval by the Public v ors
contractor obtain
Department
Public Works
grading permit(s)
Department prior to issuance of any permits. The plan
approval of
Department
shall include at least the following items and
requirer ents to reduce traffic congestion during
construction
management plan
must review
construction:
and implement the
prior to
plan during
issuance of
1. A set of comprehensive traffic control measures
construction
permits.
shall be developed, including scheduling of major
truck trips and deliveries to avoid peak traffic hours,
detour signs if required, lane closure procedures,
signs, cones for drivers, and designated
construction access routes.
2. The Construction management Plan shall identify
haul routes for movement of construction vehicles
that would minimize impacts on motor vehicle,
bicycle, and pedestrian traffic, circulation, and
safety, and specifically to minimi a impacts to the
ya p
greatest extent possible on streets in the project
areal. The haul routes shall be approved b the CCity.
3. The Construction Management Plan shall provide
for notification procedures for adjacent property
owners and public safety personnel regarding when
major deliveries, detours, and lane closures would
occur.
The Construction Management Plain shall provide for
monitoring surface streets used for haul routes so that
any damage and debris attributable to the haul trucks
can be identified and corrected by the project applicant
MM B- b: Fund a fair stare contribution to restriping
Applicant to
DPW
DPW
Prior to approval
Park Street between Buena vita and Blanding
provide a fair share
of final reap.
Avenues to accommodate transit queue jump lanes,
payment in an
and modify the traffic signals and signal timing at the
amount of $11,300.
Park Street intersections at Blanding, Clement, and
Buena Vista Avenues).
Mid B -'10: Fund a fair share contribution to reconfigure
DPW prepares
DPW
DPW
Prier to
and restripe the intersection of Park Street and
construction
occupancy of
Clement Avenue to add dedicated left turn lanes on the
specifications of
final unit.
eastbound and westbound approaches of Clement
required
Avenue, and a northbound dedicated left turn lane on
intersection
Park Street, and to modify the traffic signals to include
improvements,
protected left turn phasing for all approaches, fully
including cost
actuated traffic signal, and audible pedestrian push
estimate.
buttons and pedestrian count down treads. The
reconfiguration would require acquisition of property
from the northeast and southwest corners and the
CIC will pay fair
removal of approximately eight palrking spaces.
share contribution
of the cost
estimate for
improvements.
MM B -11: Fund a flair share contribution to the
DPW prepares
DPW
DPW
Improvement to
installation of traffic signals at the intersection of Oak
construction
be completed as
Street and Clement Avenue, and the re striping of the
specifications of
part of Clement
eastbound Clement Avenue approadh to provide an
requ
Extension from
Boatworks Residential Project
Mitigation Monitodog Program
Mitigation Monitoring and reporting Program
MMR
Mitigation Measures A dopted as Conditions of
A p p roval
Implementation
Procedures
M nit rin
Responsibility
Monitoring
and
Reporting
Action
Monitorin
Schedule
exclusive left -turn lane and a shared through /right -turn
intersection
City of Alameda
Verify
Sherman to
lane. This mitigation also would require acquisition of the
improvements,
Public Works
inclusion of
Grand and
necessary right- of-way from the project at the northwest
including cost
Department
dust control
Broadway to
corner of Park Street and Clement Avenue to install the
estimate.
rrreaures in
Tilden.
traffic signal poles, while maintaining ADA access.
Pollutant Control
applicable
mitigates the potential impact to less than significant.
Iwill pay fair
construction
share contribution
plans and
The dust control program shall include, but net
of the cost
specifications
necessarily be limited to, the following;
estimate fo r
a field
imp rove meat
in
MM -12: The Site Development Plan will include a
Applicant to fund
DPW
DPW
Improvement to
circulation and access analysis prepared by a
analysis and any
be completed as
registered traffic engineer to ensure that the planned
on site
part of Clement
internal circulation system adequately provides for
improvements.
Extension from
automobile queuing distances between intersections,
Sherman t o
commercia vehical access, and pedestrian and bicycle
Department of
Grand and
visibili and access.
Public Works
Broadway ay to
Fund a fair share contribution to the reconfiguration
prepares
Tilden..
and restriping of Clement Avenue in front of the project
preliminary design
site to include an eastbound. left turn lane (into the
cost estimate for
project) and an eastbound center refuge/merge lane
ofd site
(for traffic exciting the project) if recommended by the
improvements.
analysis, and fund 100% of all on site improvements
recommended by the circulation analysis.
C IC will pay fair
share contribution
of the cost
estimate for off site
improvements
r _.y f' ,r' ':fy k :'k'. rrr :Y.•: :3` '.4:� ..1 wSY.. .fl."S.. .,M4.... i. •:i.. '.S ::.T. r:"Y:' -Y.
2 ✓4 s .k.,.S Jar f, r'. .,-1 "2, i• --SS�� w.. .s'' _�4':a
..Cw. y {:y'= �+5 !J r:" M4 :Q'i .Ur xt•�s -r: <r..
s t`.. w r ss� ,e� .r. Y' =3. ,•1':5 �r^4'i �Yn' '�r.' �J::'ri
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r... x:'} .4 r�Y ,.i �`f'. r.', ,..ti�.�_�: .sJ -7: Cc'••.. k,y..
..i. r.5 r. �9. '.y�... J Vrr. •.a•�t:%: :''i::.,'
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7F ,ta`� .�i' 4 l- r ..i' Mfr 3 '.x'.'• 1 1 !:,;Y.-'
.r
I i _.I II��7.R .�Li■ iC' rS. .;.b'4 iY� ri-` 2. %E ::`;�.i:'L`W f- +�5 1. 5 r. !_t' ..Y� r '.4 *a ti`.�� ,.5 �..'�:.�y :��c
.�I�'�:�
4- d� r.. y,.� r J�` -s F.4+;�' ".J. r .Y'•
_2 i J' o a n 1�4'� ".'.h i_ �:.'.4 r 'Sri n�� xa' .:S r.. •u�. u i.�'.�' ,,,L
_Sf i i 4 ..y.. ,`ws r ry.'�. "+G*" s,; .I r y r
SSr:,a�
MM -1 P rior t o proj occu the project applicant
shall impl ern ent M M B- 3a TD
S B- 3a a bove.
S B- 3a a bove,
S ee B- 3a
above.
S B- 3a above.
MM C-2: During construction, the project applicant
Project Applicant
City of Alameda
Verify
Prior to issuance
shall require the construction contractor to im plement
and its
Public Works
inclusion of
of grading
BAAfD's basic and enhanced dust control
contractor(s) shall
Department
dust control
building permit;
procedures required for sites larger than four acres
such as the project site, to maintain project
prepare a
Construction Air
rrreaures in
inspect during
construction
construction related impacts at acceptable levels; this
Pollutant Control
applicable
mitigates the potential impact to less than significant.
Plan that adhere s
construction
to all specifications
plans and
The dust control program shall include, but net
in this measure.
specifications
necessarily be limited to, the following;
a field
in
wat all active construction areas at least twice
daily. Watering should be sufficient to prevent
airborne dust from leaving the site. Increased
watering frequency may be necessary whenever
wind speeds exceed 15 miles per hoar. Reclaimed
water should be used whenever possible.
Cover all trucks hauling soil, sand, and other loose
materials or require all truck to maintain at least two
feet of freeboard i.e., the minimum required space
between the top of the load and the top of the
trailer).
Boa twAs Reduced Density Al tern at1ve (18 2) Residen ial Project
Mitigation Monitoring and Reporting Program
MMRP
Boatworks Isldential Project
Mitigation Monitoring Program
M onitorin g
Implementation
Monitoring
and
Monitori
Mitig M Ado as Conditions of
Procedures
Resp
Re po rt ing
Sched
Approval
Action
Page, apply water three times daily, or apply (non
to is soil stabilizers on all unpaved access roads,
parking areas and staging areas at construction
sites.
S wee p streets (with water sweepers using
reclaimed water if possible) at the end of each da if
risible soil material is carried onto ad avey
adj acent p
roads.
Sweep daily (with water sweepers) all paged access
roads, parking areas and staging areas at
construction sites.
The "enhalnced" dust control measures shall include
the following:
Hydroseed or apply non -toxic soil stabilizers to
construction areas and previously graded areas.
inactive for ten days or more
Enclose, cover, water twice daily or apply non -toxic
soil binders to exposed stockpiles of dirt, sand, etc.
Limit traffic speeds on unpaved roads to 15 miles
per hour mph
Install sandbags or other erosion control measures
to prevent silt runoff to public roadways
Replant vegetation in disturbed areas as quickly as
possible
M M -Gar: In order to reduce G H G emissions from
Project applicant
City of Alameda
Verify
Prior to issuance
energy consumption and to maintain project operations
and its
Community
inclusion of a
of building or
consistent with the initiatives of the L PCP, the project
contractor(s) shall
Development
energy
building perrnit
applicant shall pursue energy conserving building
prepare site plans
Department
conservation
design and alternative energy conservation strategies
that incorporate
design
to meet or exceed the most current Uniform wilding
energy
measures in
Code requirements and State energy criteria,
conservation
construction
design measures
plans and
specifications
MM -b: In order to maintain project operations
Project applicant
City of Alameda
Verify
Prior to issuance
consistent with Energy Initiative 6 of the L P P, no
and its
Community
exclusion of
of building or
fireplaces or stores installed as part of the proposed
contractors shall
Development
wood-
building permit (s
project may be wood burring.
prepare site plans
Department
burning
that exclude wood-
fireplaces
burning fireplaces
and stages in
or stoves
construction
plans and
specifications
MM C- 6c: In order to maintain project operations
Project applicant
DPW.
DPW to
Prior to issuance
consistent with Waste a rid F ecy ling Initiative 1 of the
shall prepare a
approve
of demolition
LAPCP, demolition and construction wastes shall be
demolition
demolition
permits
sorted and recycled to the extent feasible. A
recycling plan and
recycling
demolition recycling plan shall be developed prior to
construction plans
plan; verify
i ssuance of demolition permits and approved by DPW.
shall specify
inclusion of
sorti and
sorti and
roc cling of
rec ycling in
Boatworks Isldential Project
Mitigation Monitoring Program
Litigation Monitoring and Reporting Program
M M RP
Boalworks Reduced Density AternaHve {182} Residential Project
Monit
Impl
M nit rin
an d Monito
Mitigat M easures Adopted as Conditions of
P
Responsibility
R rti sch
Approval
Action
materials
construction
plans
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MM D The project applicant will incorporate the
Project applicant
City of Al
Approve P rior toissuance
following requirements into the construction contract
and its
contractor shall
C ommunity
Development
construction o f building or
contract building permit
specifications:
prepare
Department, City
specification
construction
Building
and
qo Construction activities will be limited to between the
contract
Department staff.
construction
hours of 7:00 am and 7:00 pm Monday through
specifications and
plan
Friday and 8:00 art to 5:00 pm on Saturdays.
construction plans
that adhere to all
E quipment and trucks used for construction will use
specifications in
this measure
the industry standard noise control tech niques e.g.,
improved mufflers, equipment redesign, use of
Intake silencers, ducts, eng enclosures, an d
acoustically-attenuating shields or shrouds,
wherever feasible).
Stationary noise sources will be located as far from
adjacent receptors, whenever feasible, and they will be
muffled and enclosed within temporary sheds,
incorporate Insulation harriers, or other measures to
the extent feasible.
MM D- If necessary to comply with the i nterior noise
Project Applicant
City of Alameda
Verify that sit Prior to issuance
requirements of the State and achieve an acceptable
and its
Community
plans of building or
interior none level, noise reduction in the form of
contractor(s) shall
Development
incorporate building permit (s
sound -rated assemblies i.e., windows, exterior doors,
prepare site plains
Department; City
noise-
and walls) shall be incorporated into project building
that incorporate the
Building
controlling
design, based upon recommendations of a qualified
described noise-
Department staff.
features
acoustical engineer. Final recommendations for sound
controlling design
rated assemblies will depend on the specific building
measures
designs and layout of buildings on the site and shall be
determined during the design phase. Specific
consideration shall be given to window size, degree of
sound insulation of exterior galls, which can be
increased through staggered- or double studs, multiple
layers of gypsum board, and incorporation of resilient
channels.
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M E -1 Tine project applicants shall document the
P roject applicant
City of Alameda
Verify that Verify that HABS
circa 1910 Steel Fabrication hop Warehouse and
and its
contractors shall
Community
Development
HABS documentation
documentatio has been
Compressor Room/Storage Room/Storage Building in accordance
prepare HABS
Department
n has been completed prior
with the Historic American Building Surrey HABS
Level 11
completed. to issuance of
Level 11 documentation standards of the .National Park
documentation.
demolition permit.
orvice. Level II standards include the folIowing:
Verify that an
I Photographs. Large format -inch negative or
Pro`ect applicant
appropriate Verify that an
greater black and white photographs should be
and its
retire
inter appropriate
In
taken of all elevations of the two buildings, plus
contractors shall
history interpretive
limited content and detail shots. A limited number of
retain a
professional
exhibit has history exhibit
been has been
hitoricail photos of the project area buildings, if
architectural
installed. installed prior to
available, should also be photographically
historian to design
occupancy..
reproduced. All photographs should be printed on
an interpretive
acid -free archival bond paper.
history exhibit that
Boalworks Reduced Density AternaHve {182} Residential Project
6. Mitigation Monitoring and Reporting Prograrn
IVIIVIRP
Mitigation Measures Adopted as Conditions of
Approval
Implementation
Procedures
monitoring
Responsibility.
Monitorin
and
Reporting rtiln
Action
Monitorin
hedule
2. Written History. Prepare a written history of the
adheres to all
specifications in
project area and buildings using the l-IABS standard
this measure.
outline format.
3. Drawings. If available, reproduce original building
drawings on rnylarorthrough photographic means.
4. Archiving. The completed HAGS documentation
package (photos, report, and drawings) shall be
archived at the City of Alameda, the City of
Alameda Public Library, and the Northwest
Information Center of Sonoma State University.
The project applicant shall also provide an interpretive
history exhibit in the form of a plaque or panel to
describe the historical importance of the former Dow
Company buildings to the general public. Information
generated from the documentation effort, such as
photographs and historical tent, described above, can
be utilized for this effort as well. The interpretive exhibit
can either be placed along the proposed waterfront
traillopen space, or at the corner of Clement Avenue
and Oak Street. The interpretive exhibit should be
designed by a professional architectural historian
meeting the qualifications of the Secretary of the
Interior s Standards.
IVIM E-2: If cultural resources are encountered, all
Project Applicant
City of Alameda
Community
Review and
Review extent
activity in the vicinity of the find shall cease until it can
and its
contractors shall
Development
approve
extent and
and methodology
of subsurface
be evaluated by a qualified archaeologist and a Native
retain
Department
methodology
investigations
American rep resentative. Prehistoric archaeological
g
archaeologist
of subsurface
prior to approval
(materials might include obsidian and ched flaked
paleontologic
of grading
stone tools e.g., projectile points, knives, scrapers) or
Archaeologist shall
al
permit (s
toolmaking debris; culturally darkened soil "midden
conduct
investigation
If resources
containing heat affected rocks, artifacts, or shellfish
subsurface
archaeological
if resources
encountered,
remains and stone milling equipment e.g., mortars,
investigation
are
review of
pestles, handstolnes, or rmilling slabs); and battered
encountered,
treatment and
stone tools, such as hammer tones and pitted stones,
Project Applicant
verify work is
monitoring plain
Historic -era materials might include stone, concrete, or
and its
suspended
prior to
adobe footings and walls; filled yells or privies; and
contractor(s) shall
train workers and
and review
and approve
contilnuation of
construction
deposits of metal, glass, and/or ceramic. refuse. If the
monitor their
of the
archaeologist and Native American representative
treatment
determine that the resources may be significant, they
and
will notify the project applicant or contractor (s) and the
Project Applicant
monitoring
City of Alameda and will develop an appropriate
and its
contractor(s) shall
plan if
paleontologic
treatment plan for the resources. The archaeologist
halt work and
al materials
shall consult with Native American monitors or other
notify qualified
are
ap p rop riate Native American rep resentatives in
p
archaeologist and
discovered
determining appropriate treatment for unearthed
a Native American
cultural resources if the resources are prehistorle or
representative if
Native American in nature.
materials are
discovered
In considering any suggested mitigation proposed by
Archaeologist, in
the archaeologist and Native American representative
consultation with
in order to mitigate Impacts to cultural resources, the
Native American
project proponent will determine whether avoidance is
representatives
nece and feasible in light of factors such as the
shall conduct
Boalworks Residentiai Project
Miti etlon 1onl(orin Program
Mitigation Monitoring and Reporting Program
MMRP
Boatworks Reduced Dens!ty A[te mat! ve (18 2) Residential Project
Monitoring
Implementation n
unit rin
and
Monitoring
Mitigation Measures Adopted as Conditions of
Procedures
Responsibility
Reporting
Schedule
Approval
Action
nature of the find, project design, costs, and other
independent
considerations. if avoidance is infeasible, ether
review and
appropriate measures (e.g., data recovery will be
prepare treatment
instituted. Work may proceed on other parts of the
plan, if necessary
project area while mitigation for cultural resources is
Project Applicant
being carried out.
or its contractor(s)
shall implement
treatment plan
and /or implement
other measures
such as data
recovery
MM E-3: If paleontological resources, such as
Project Applicant
City of Alameda
eview and
Review
review extent.
fossilized bone, teeth, shell, tracks, trails, casts, melds,
and its
Deevelopvelop mea
approve
and methodology
or impressions are discovered during ground disturbing
contractor(s) shall
Department
extent and
of subsurface
construction activities, all such activities within 100 feet
retain
methodology
investigations
of the find shall be halted until a qualified paleontologist
paleontologist
of subsurface
prior to approval
can assess the significance of the find and, if
paleontologic
of grading
necessary, develop appropriate salvage measures in
Paleontologist
l
permit s
consultation with the City of Alameda and in
shall conduct
investigation
If resources
conformance with Society of Vertebrate Paleontology
subsurface
if resources
encountered,
Guidelines.
archaeological
investigation
are
review of salvage
encountered,
measure plan
Project Applicant
verify work is
prior to
and its
suspended.
continuation of
contractors hall
Review w and
construction
train workers and
monitor their
approve of
alctivities
the
paleontologic
PrV I ect Applicant
al materials
an its
salvage
contractor(s) shall
measures.
halt wo and
notify
paleontologist if
materials are
discovered
Paleontologist
shall conduct
independent
review and
develop salvage
measures, if
necessary
Project Applicant
or its contractor(s)
shall salvage
measures
MM E -4: If human skeletal remains are uncovered
Project Applicant
City of Alameda
Review and
prior to approval
during project construction, the project proponent
and its
Community
approval of
of the
(depending upon the project component) will
contractor(s) shall
Development
the
construction
immediately halt work, contact the Alameda Counter
train workers and
Department
construction
plans
coroner to evaluate the remains, and follow the
monitor their
plan that
procedures and protocols set forth in Section 1 5064.5
activities
includes
e)(1 of the C EQA Guideiines. If the County coroner
If remains are
standard
determines that the remains are Native American, the
discovered, project
procedures if
human
project proponent will contact the Native American
Applicant and its
Heritage Commission, in accordance with Health and
contractor(s) shall
remains are
Safety Code Section 7050.5, subdivision (c), and
Boatworks Reduced Dens!ty A[te mat! ve (18 2) Residential Project
Mitigation Monitoring and Reporting Program
MMR
Boatworks Residential Project
Mltiga(ton iNonitortng Program
Monitorin
rin
Implementation
Monitor
and
Monito
M itigation Measures Ad a Cond itions of
Procedures
Responsibility
Reporting
Schedul
Approval
Action
Public Resources Code 5097.98 as amended by AB
halt work and
encountered
2641). Per Public Resources Code 6097.98, the
notify the Alameda
landowner shall ensure that the immediate vicinity,
County coroner.
according to generally accepted cultural or
if the remains are
archaeological standards or practices, where the
d etermined to be
Native American human remains are located, i not
damaged or disturbed b further development activity
N ative
N ican,
until the landowner has discussed and conferred, as
the project
ect
prescribed in this section PIED 5997.98), with the most
proponent shall
likely descendents regard ng their recommendations, if
contact the Native
applicable, taking into accouint the possibility of multiple
American Heritage
human remains.
Commission.
Project Applicant
or its contractor (s
and /or the
landowner shall
halt further
development
activity and comer
with the most lilely
descendants.
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I IVI F-1: No more than two weeks in advance of any
Project applicant
City of Alameda
Review the
Prior to approval
tree or shrub removal, or alteration to structures that
an its
contractor shall
Community
Development
construction
plans for
of the
construct
would commence during the breeding season February
ensure that
Department;
the project to
plans and prior to
I through August 31), a qualified wildlife biologist shall
construction
appropriate
ensure that
start of applicable
conduct pre construction surveys of all potential special-
plan(s) that adhere
resource agency
nesting
phase of
status bird nesting habitat in the vicinity of the planned
to this measure to
i.e. California
season is
construction.
activity. Pre construction surveys are not required for
reduce impacts to
Department of
avoided or
construction activities scheduled to occur during the
birds and their
Fish and am
that activities
non breeding season (August 1 through January 1
ne tsl ggs
ef �ni
n
Construction activities corn
commencing during the non-
If construction will
nests.
n.
nests.
breeding season and continuing into the breeding
g g
take place
season do not require surreys has it is umd that any
between February
if active
breeding birds taping up nests would be acclimated to
and August
project applicant
nests are
found during
project- related activities already under wary. Nests
and its
pre
initiated during con activities would b
contractor(s) shall
construction
presumed to be unaffected by-project activities, and a
retain a qualified
avian
buffer zone around such nests would not be necessary.
wildlife biologist to
surveys, the
However, a nest initiated during construction cannot be
complete the
results of the
moved or altered
actions in this
surveys shall
measure.
be discussed
If no active nests are found during pre construction
with the
appropriate
avian sur then no further mitigation is req uired.
9 q
resource
agency i.e.
If active nests are found during pre construction avian
DF, and
surveys the results of the surveys shall be discussed
avoidance
with the appropriate resource agency and avoidance
procedures
procedures shall be adopted, if necessary, on a case-
shall be
by-case basis. Avoidance measures would most likely
adapted, if
include a no- disturbance buffer around the nest, which
necessary=
will be maintained until a qualified biologist determines
that the young have fledged or otherwise abandoned
the nest. The si of the buffer zones and types of
construction activities restricted within them shall be
determined through consultation with resource
agencies, taking into account factors such as: noise
Boatworks Residential Project
Mltiga(ton iNonitortng Program
I itfgation Monitoring and Reporting Program
MMRP
Boatwo rks Deduced Density Alto mat! ve (18 2) Residential Project
Monitoring
Implementation
Monitoring
and
Monitoring
Mitigation Measures Adopted as Conditions of
Procedures
Responsibility
Reporting
Schedule
Approval
Action
and human disturbance levels at the project site and
the nesting site at the time of the survey and the noise
and disturbance expected during tine construction
activity; distance and amount of vegetation or other
screening between the project site and the crest; and
sensitivity of individual nesting species and
behaviors of tine nesting birds.
MAC F-2: The applicant and project designer shall
Project applicant
City of Alameda
Verify
Prior to issuance
reduce building lighting from exterior sources by the
and its
Community
inclusion of a
of building or
following measures:
contractor(s) shall
Development
bird -safe
building permit (s
prepare site plans
Department
design
Minimize amount and visual impact of perimeter
that incorporate
measures in
lighrting, through measures such as downward-
building design
construction
pointing lights, side shields, visors, and motion-
features that
plans and
sensor lighting.
where to this
specifications
measure
Utilize minimum wattage fixtures to achieve required
lighting levels.
a Use minimum wattage fixtures to achieve required
lighting levels.
Avoid placing water features in close proximity to
glazed facades.
Design to avoid monolithic, unditinguihable expanses
of glazing by maximizing "visual noise" both on the
building scale and individual glass units.
MM F- a, Potential direct and indirect disturbances to
Project. applicant
City of Alameda
Tree removal
Approval of bat
bats shall be identified by locating colonies, and
and its
Community
permit s
protective
instituting protective measures prior to construction, No
contractor (s) shall
Development
and
measures shall
more than two weeks in advance of tree removal or
retain a qualified
Department
demolition
tale place prior to
demolition of buildings onsite, a qualified bat biologist
bat biologist to
permit
issuance of tree
e.g., a biologist holding a CDFG collection permit and
locate colonies,
hallbe
removal permit (s
a Memorandum of Understanding with CDFG allowing
institute protective
conditioned
and demolition
the biologist to handle and collect bats) shall conduct
measures, and
upon
permits.
pro construction surveys for bat roosts. No activities
that could disturb motive roasts shall proceed prior to
conduct pre-
construction
approval of
bat protective
the completed surveys.
surveys.
measures.
survey
survey shal b be
conducted no
more than two
creeks prior tree
removal or
demolition.
MM F -b: If a bat colony is located within the project
Project applicant
City of Alameda
Review pre-
Approval of bat
site during pre construction surveys, the project shall
and its
Community
construction
protective
be redesigned to avoid impacts, and a no- disturbance
contractors shall
Development
survey
measures shall
buffer acceptable in size to the CDFG shall be created
retain a qualified
Department
reports,
take plaice prior to
around any roosts in the project'vicinity, if possible, Bat
bat biologist to
Review
is
issuance of tree
roosts initiated during construction are presumed to be
re,
construction
removal permits
unaffected, and no buffer i necessary, however the
construction
and site'
and demolition
"take" of individuals is prohibited.
surveys.
plans for
permit (s).
If there is a maternity colony present and the project
If surveys identify
bat colonies within
proper
incorporation
Pre constriction
surveys shall be
cannot be redesigned to avoid removal of the tree or
the site, project
of buffers.
conducted no
structure inhabited by the bats, demolition of that tree
applicant and its
more than two
or structure shall not commence until after young are
contractor(s) shall
weeps prior tree
flying i.e., after .July 31, confirmed by a qualified bat
prepare
removal or
biologist) or before maternit y colonies form the
construction and
demolition,
following year i.e. prior to Larch 1
site plains with
Boatwo rks Deduced Density Alto mat! ve (18 2) Residential Project
6. mitigation Monitoring and Deporting Program
MMR
Boatworks Residential Project 1
Mitigation Monitoring Program
Monitorin
Implementati
Monito
a rid
Mon
Mitigati Meas Adopt as Conditions of
Procedures
Responsibility
Reporting
S chedul e
A pp rova l
Action
If a non maternity roost must be removed as part of the
buffers that adhere
to this measure.
project, the non maternity roost shall be evicted prior to
building /tree removal by a qualified biologist, using
Project applicant
methods such as raking holes in the roost to alter the
and its
airflow, or creating one -way funnel exits for the bats.
contractors shall
train construction
workers to avoid
"take" of bats.
Maternity colonies
shall be avolded
and non maternity
colonies shall b e
evicted in
accordance with
this measure.
MM F-3 c: If known bet roosting habitat is destroyed
If known bat
City of Alameda
Review pre-
Review of
during building /tree removal, artificial bat roosts shall
roosting habitat is
Commun
construction
construction and
be constructed in an undisturbed area in the project
destroyed during
Development:
survey
site plans shall be
site vicinity away from human activity and at least 200
building or tree
Department
reports.
conducted prior
feet from project d /construction activities. The
removal, artificial
view
to issuance of
design an d location of the artificial bat roost(s) shall be
bat roasts shall be
construction
tree removal
determined by a q ualified bait biologist.
constructed in
and site
permits and
accordance with
this measure.
plans for
demolition
permit (s).
proper
Incorporation
Artificial roosts
of artificial
shall b
roosts.
constructed prior
to destruction of
roosting habitat,
or by a date
recommended by
a qualified bat
biologist.
MM F -4: if dredging or pile driving occurs as part of the
Project applicant
City of Alameda
Review
Prior to a pproval
project, the project applicant shall implement Best
and its
Community
construction
of the
Management Practices (BMPs) for protection of
contractor(s) shall
Development
plan(s) for
construction
s almonids and Pacific herring, that are identified in the
incorporate into
Department
incorporation
plans
Long- Terra Management Strategy for the Placement of
construction
of BIVIPs.
Dredged Material in the Ban Francisco Bay Region
plan(s).
LTM Corps, 2001). Bi1Ps listed in the LTI1
include the following:
installation of silt curtains and gunderbooms for
filtering sediment;
mechanical dredge operations controls, including
increased c� cle tine, e limination of multiple bucket
bites and elimination of bot tom stockpiling;
a
hydraulic dredge operations controls, including
reduction of cutterhead rotation speed, reduction of
swing speed, and elimination of bank und
hopper dredges and barges operational controls,
inclu reduction of hopper overflow, louver
hopper fill levels, and use of a waster recirculation
system; and
use of s p ecialty eq uipment, includin neuma
Boatworks Residential Project 1
Mitigation Monitoring Program
Mitlgatlon Monitoring and Deporting Program
MP
Boa tworks i edUGod Den s1ty A tern ative (182) Residential Project 11
Monitorin
Implementation
Monitoring
and
rin
Monitorin
Mitigation Measures Adopted as Conditions of
Procedures
Responsibility
Reporting
Schedule
Approval
Action
pumps, closed or environmental buckets, large
capacity dredges, and specialized tools for
precision dredging.
In addition, dredging or pile driving in the Oakland
Estuary shall minimize impacts on special status fish
through one or more of the following methods: 1
dredging or pile driving shall only be conducted within
work windows designated to cause the least impact on
Pacific herring and salmonid i.e., June through
November, see Table 4.17-11); dredging or pile-
driving shall only produce noise levels below 150
decibels at 30 feet; and /or dredging or pile driving
shall only be conducted in accordance with NMFS
directives and Corps permits to reduce potential
impacts on fish species.
MM F- a: The project applicant shall implement the
Project applicant
DPW
review
Prior to approval
following Best Management Practices (B MPs) during
and its
construction
of the subdivision
construction:
contractor(s) shall
plan(s) for
improvement
incorporate into
incorporation
plans
1. Install slit fencing, straw wattles or other appropriate
construction
plan (s).
of BMPs and
conduct
erosion and sediment control methods or device8 device to
regular
prevent sediment from the upland portion of the site
from entering the Estuary as a result of project
inspections.
activities,
2 Operate equipment e.g., back hoes and cranes)
that is used for removal or Installation of fill and rip
rap along the Estuary shoreline from dry land,
where possible. Construction operations within the
Oakland Estuary can also be barge mounted or
utilize other water -based equipment such as scows,
derrick barges and tugs,
3. Prevent any fueling activity from occurring within 50
feet of the Oakland Estuary.
4. Where applicable, implement BMPs listed under
Mitigation Measure 4.F -4 to avoid impacts to water
quality resulting from dredging or other activities
within open waters, as identified in the Long -term
Management Strategy for the Placement o
Dredged Material in the Sari Francisco Bay R egion
LTMS (Corps, 2001).
Test all materials proposed for excavation and
dredging for the possible presence of contaminants.
Construction practices shall be designed in
coordination with the Corps, RW CB, and other
applicable agencies, to minimize the dispersion of
contaminants into the water column and ensure proper
disposal of contaminated materials.
M P -b: The project applicant shall provide
Project Applicant
City of Alameda
Review
Prior to approval
compensatory mitigation i.e., "no net loss for any
and its
Community
project
of the
temporary and permanent impacts to wetlands as
contractor(s) shall
Development
plan(s) for
construction
defined by_ ection 404 of the Clean water Act, as
provide
Department; DPW,
incorporation
plans
required by regulatory permits issued by the Corps,
compensatory
Array Corps of
of
RW CB, and BCDC. Measures may include but would
mitigation for
Engineers,
compensator
not be limited to 1 onsite or offsite mitigation through
wetlands impacts
1 WQGB, and
y wetlands
wetland creation or restoration; and development of
as specified in this
BCDC.
mitigation.
measure.
Boa tworks i edUGod Den s1ty A tern ative (182) Residential Project 11
Mitigation Monitoring and Reporting Program
IVIIVIRP
if oinsite restoration is net feasible, the project
applicant shall negotlate compensator offsite
mitigation for wetland losses with applicable
regulatory agencies, at a :1 impact -to- restoration
ratio, or other ratio determined by the agencies.
Mitigation and Monitoring Program. Prior to the start
of construction or in coordination With regulatory
permit conditions, the project applicant shall prepare
and submit for approval to the Corps, RWQCB, and
BCDC a mitigation and monitoring program that
outlines the mitigation obligations for temporary and
permanent impacts to waters of the U.S., including
wetlands. The program shall include baseline
information from existing conditions, anticipated
habitat to be enhanced, thresholds of success,
monitoring and reporting requirements, and site-
specific plans to compensate for wetland losses
resulting from the project. The Boatworks Residential
Project Mitigation and Monitoring Plan shall include,
but not be limited to, the following:
Clearly stated objectives and goals consistent with
regional habitat goads.
Location, size, and type of mitigation wetlands
proposed.
A functional assessment of affected jurisdictional
waters to ensure that the EPA's "no net loss of
wetland value" standard is met. The functional
assessment shall also ensure that the mitigation
provided is commensurate with the adverse
impacts on Bair resources its accordance with
BCDC mitigation policies. The assessment shall
provide sufficient technical detail in the project
design including, at a minimum, are engineered
grading plan and water control structures, methods
for conserving or stolpiling topsoil, a planting
program including removal of exotic species, a list
of all species to be planted, sources of seeds
and/or plants, timing of planting, plant locations and
elevations on the mitigation site base neap, and
maintenance techniques.
Documentation of performance, monitoring, and
adaptive management standards that provide a
mechanism formaking adjustments to the
mitigation site. Performance and monitoring
standards shall indicate success criteria to be met
within 5 gears for vegetation, animal use, removal
of exotic species, and h0roloaly. Ada r)tive
Boatworks Residentlal Project 12
Mitigation Monitoring Program
Monitorin
Implementation
Monitoring
and
Monitoring
Mitigation Measures Adopted as Conditions of
Procedures
Responsibility
Reporting
Schedule
Approval
Action
a Mitigation and Monitoring Plan.
Project Applicant
Review
Onslte or Offsite Wetland Creation or Restoration. To
and its
contractor(s) shall
Boatworl
Wetlands
the extent practicable, the project applicant shall
create and adhere
(litigation
restore the tidal marsh to the Oakland Estuary
to a wetlands
and
shoreline at a (minimum 1 impact -to- restoration
Mitigation and
Monitoring
ratio, through activities such as removal of debris and
Monitoring Plan.
Plan.
concrete r1praip, and revegetating with native tidal
marsh species.
if oinsite restoration is net feasible, the project
applicant shall negotlate compensator offsite
mitigation for wetland losses with applicable
regulatory agencies, at a :1 impact -to- restoration
ratio, or other ratio determined by the agencies.
Mitigation and Monitoring Program. Prior to the start
of construction or in coordination With regulatory
permit conditions, the project applicant shall prepare
and submit for approval to the Corps, RWQCB, and
BCDC a mitigation and monitoring program that
outlines the mitigation obligations for temporary and
permanent impacts to waters of the U.S., including
wetlands. The program shall include baseline
information from existing conditions, anticipated
habitat to be enhanced, thresholds of success,
monitoring and reporting requirements, and site-
specific plans to compensate for wetland losses
resulting from the project. The Boatworks Residential
Project Mitigation and Monitoring Plan shall include,
but not be limited to, the following:
Clearly stated objectives and goals consistent with
regional habitat goads.
Location, size, and type of mitigation wetlands
proposed.
A functional assessment of affected jurisdictional
waters to ensure that the EPA's "no net loss of
wetland value" standard is met. The functional
assessment shall also ensure that the mitigation
provided is commensurate with the adverse
impacts on Bair resources its accordance with
BCDC mitigation policies. The assessment shall
provide sufficient technical detail in the project
design including, at a minimum, are engineered
grading plan and water control structures, methods
for conserving or stolpiling topsoil, a planting
program including removal of exotic species, a list
of all species to be planted, sources of seeds
and/or plants, timing of planting, plant locations and
elevations on the mitigation site base neap, and
maintenance techniques.
Documentation of performance, monitoring, and
adaptive management standards that provide a
mechanism formaking adjustments to the
mitigation site. Performance and monitoring
standards shall indicate success criteria to be met
within 5 gears for vegetation, animal use, removal
of exotic species, and h0roloaly. Ada r)tive
Boatworks Residentlal Project 12
Mitigation Monitoring Program
6. Mitigation Monitoring and Reporting Program
I Iii P
Boa tworks Reduced Density Arternatrve (18 2) Res Identlal Project 13
Monitorin
Im
Monitoring
and
Monitorin
Mitigation M asur s Adopted as conditions of
Procedures
Responsibility
Deporting
schedule
Approval
Action
management standards shall include contingency
measures that outline c lear steps to be tak if and
when it is determined, through monitoring or ether
means, that the enhancement or restoration
techniques are net meeting success criteria.
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ISM -1 a: A site specific, design -level geotechn Ica i
Project Applicant
City -of Alameda
Review
Prier to issuance
for the project shall be conducted a a
and investigation its
Community
geotechnical
of buildi permit,
condition of building permit. The investig shall
distribution
contractors shall
Development
Investi gation
review
include detailed characteri of the and
retain a registered
Department
for
for the
geotechnical
compo of subsurface materials and an
geotechnical
engineer t
project as
investigation.
assessment o f their behavior during violent seismic,
groun s haking. The analysis shall recommend design
conduct
condition of
Pr to
parameters that would be necessary to avoi or
eotechni
o ti ation.
building
occupancy
certificate,
substantially reduce structural damage under peak
Investigation
permit.
inspect final
ground accelerations of no less than g. The
investigation and recommendations shall b in
results ar�d
Inspect final
buildings.
conformance with all applicable city ordinances and
recommendations
shall be included
buildings to
policies and consistent with the design requirements of
in the final design
ensure they
Seismic Design Category E1 very high vulnerability) of
the California Building Code. T
of the project and
were
geotechnical report
shall be prepared by a registered geotechnical engineer
shall be including
in and
constructed
to
and approved by the pity, And all rcomimndation
shall be included in the final design of the project.
g
building
according
specifications
applicat*permit
ions.
MM -'I b: Prior to issuance of occupancy permits, the
Project applicant
City of Alameda
Review and
Prior to
P roject appllca�nt shall prepare an ea rthquake ha ards
and its
ommunity
approve
occupancy
information document to th satisfaction of City staff.
contractors shall
Development
earthquake
certificate.
This document shall be made available to any Rotential
prepare an
earthquake
Department
hazards
occupant prior to purchase or rental of the housing
hazards
information
units. The document shall describe the potential for
strong ground- shaking at the site, potential affects of
informartion
do uiment..
ground sharking, and earthquake preparedness
document.
procedures.
MM G -2: Earthwork, foundation and structural design
Project applicant
City of Alameda
Review and
Prior to approval
for the proposed project shall be conducted in
and its contractors
Community
approve
of planning
accordance with all recommendations contained in the
shall incorporate
Development
project
entitlements for
required geotechnical investigation Mitigation Leasure
recommendations
Department
design and
the project or
4. -1 a). The Inve tigation rmust include an assessment
from the
construction
issuance of
of all potentially foreseeable seismically-induced
geotechnical
plans.
building permit (s
ground failures, inc liquefaction, san bolls,
investigation (see
lateral spreading and rapid settlement. Mitigation
Ml -1 a, above)
strategies must be designed for the site specific
into project design
conditions of the project and must be reviewed for
and construction
compliance with the guidelines of CGS Special
plans.
P 117 prior to incorporation into the project.
Examples of passible strategies include edge
containment structures (berms, diked sear walls,
retaining structures, compacted soil zones), removal or
treatment of liquefiable sails, soil modification,
modification of site geometry, lowering the groundwater
table, In-situ ground densification, deep foundations,
reiinforced shallow foundations, and structural design
that can accommodate predicted displacements.
MM -3: The required geotechnical report for the
Project Applicant
City of Alameda
Review and
Prior to approval
project Mitigation Leasure 4.G-1 a shall determine the
and its
Community
approve
of planning
susceptibility of tine project site to settlement and
contractor(s) shall
Development
project
entitlements for
prescribe appropriate engineering techniques for
retain a registered
Department
design and
the projector
reducing its effects. where settlement crud /or
geotechnical
construction
'issuance of
engineer to
Boa tworks Reduced Density Arternatrve (18 2) Res Identlal Project 13
Mitigation MonitorIng and f epodng Program
MMR
Boat works ResIdential Project 1
Mitigation Monitoring Prograrn
Monito
Implementation
Mo
arid
Monitorin
Mitigation Measures Adopt as C of
Procedures
Res
Re rtin
Sc hedule
Approval
Action
differential settlement is pre dicted, mitigation
prescribe
plans.
building permits
measures—such as lightweight fill, geofoam,
mitigation
s urcharging, wick drains, deep foundations, structural
measures based
sl hinged slabs, flexible utility connections, an d
on the
utility hangers could be used. These measures shall
geotechn
be evaluated and the most e ff ec tive, feasible, and
Investig
economical measures shall be recommended.
Such measures
Engineering recommendations shall be included in the
shall be included
project engineering and design plans, and be reviewed
in the project
and approved by a re geotechnical engineer.
engineering and
All construction activities and design criteria shall
design plans, and
comply with applicable cedes and requirements of the
be reviewed and
most recent California Building Code, and applicable
approved by a
City construction and grading ordinances.
registered
geotechnical
engineer.
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M hE -3: Are Integrated Pest Management. ement. Plan IPi I
Project Applicant
PDW
Review and
Prior to approval
shall be prepared and implemented by the project
and its
approve IPI I.
of open space
applicant for all common landscaped areas. The iPIVI
contractor(s) shall
maintaince
shall be prepared by a qualified professional and shall
retain a qualified
agreement or
recommend methods of pest prevention and turf grass
professional to
subdivision
management that use pesticides as a last resort in pest
prepare and
improvement
control. Types a rates of fertilizer and pesticide
implement an
agreement.
application s hall be specified. The IPM shall specify
Integrated Best
methods of avoiding runoff of pesticides and nitrates
Management Plan
into receiving storm drains and surface wateror
IPM that adheres
leaching into the shallow groundwater table. Pesticides
to the
shall be used only in response to a persistent pest
specifications in
problem that cannot be resolved by non pesticide
this measure.
measures. Preventative chemical use shall not be
employed. Cultural and biological approaches to pest
control shall be fully integrated into the IP Is, with an
emphasis toward reducing pesticide application.
MM H -4: The project applicant shall design and
Project Applicant
City of Alameda
BD shall
Prior to issuance
the proposed seawall such that future adaptive
and its
and construct
PDW San
review firs al
of con s t ruction
management measures can be implemented to further
contractor(s) shall
Francisco Bay
seawall
permit.
p rotect up land areas from potential rising sea levels.
p p p g
design and
Conservation and
n.
design.
g
Prior to construction the final seawall design shall be
construct seawall
Development
p
reviewed by BCDC BCD and in accordance with current
Commission
guidelines regarding protection against sea level rise.
I
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MM -'i a: Each structure proposed for demolition shall
Project Applicant
City of Alameda
Review and
Pr*I or to approval
be assessed by qualified licensed contractors for the
and its
Community
approve
of improvement
potential presence of lead -based paint or coatings,
contractors shall
Development ent
assessment.
plan.
asbestos containing materials, and PCB- containing
retain qualified
Department
equipment prior to issuance of a demolition permit.
licensed
contractors to
assess structures
for the potential
presence of lead-
ba paint or
coatings, asbestos
containin
materials, and
PCB- containing
equipment.
MM 1-1 b: If the assessment required by Mitigation
Project Applicant
City of Alameda
Review and
Prior to issuance
Boat works ResIdential Project 1
Mitigation Monitoring Prograrn
M itigallon monitoring and Deporting Program
MMR
Boatworks Reduced Density Alternative (18 2) Res Identlal Project 15
Monitoring
Implementati
Monitoring
and
Monito
Mitigation Measures Adopted as Conditions of
Procedures
Responsibility
Reporting
Schedule
Approval
Action
Measure 41 al finds presence of lead -based paint
and its
Community
approve
of demolition or
asbestos, and /or PCBs, the p roject applicant shall
contractors shall
Development
health and
renovation
create and implement a health and safety plan to
create an
D
p
safety Ian
perm
protect workers from risks assoc iated with hazardous
implement a health
materials during demolition or renova of affected
and saf ety plain
structures.
MIA [4 If the assessment required by Mitigation
Project Applicant
C ity of Alameda
review and
prior to issuance
Leasure 41 -1 a finds resence of lead -based paint, the
and its
Community
app rove
of demoli or
project applicant shall implement a lead-
develop
p and ilm p
contractor(s) shall
Development
lead-based
renovation
based pll'tt remo plan. The plan shall s pec ify, but
develo and
Department
De
paint removal
permi
not be limited to, the following elements for
impl a lead
plan
implementaltion:
baked paint
removal plan that
Develop a removal specification approved by a
adheres to the
Certified lead Project Designer.
specifications of
this measure
Ensure that all removal workers are properly
trained.
Contain all work areas to prohibit off -site Imigratlon
of p aint chip debris.
Remove all peeling and stratified lead-based paint
on building and non building surfaces to the degree
necessary to safer and properly complete
demolition activities according to recommendations
of the survey. The demolition contractor shall b
responsible for the proper containment and disposal
i ntact lead -based paint on all equipment to be cut
and /or removed during the demolition.
Provide on -site personnel and area air monitoring
during all removal activities to ensure that workers
and the environment are adequately protected by
the control measures used.
Clean up an d/or vacuum paint chips with a high
efficiency particulate air HE PA) filter.
Collect, segregate, and profile waste for disposal
determination.
Properly dispose of all waste.
MM 1-1d: If the assessment required by Mitigation
Project applicant
City of Alameda
Review and
Prior to issuance
Measure 4.I -a finds asbestos, the project applicant
and Its
Community
approve
of demolition or
shall ensure that asbestos abatement shall be
contractor(s) shall
Development
asbestos
renovation
conducted by a licensed contractor prior to build
retain a state-
Department
abatement
permit.
delmolition. Abatement of known or suspected A Ms
certified asbestos
plan
shall occur prior to demolition or construction activities
to develop and
that would disturb those materials. Pursuant to an
implement an
asbestos abat plan developed by a state certified
asbestos
asbestos consultant and approved by the City, all
abatement plan
ACMs shall be removed and appropriately disposed of
that adheres to the
by a state certified asbestos contractor.
specifications of
this measure
11AM I-le: If the assessment required by Mitigation
Project applicant
City of Alameda
Review
Prior to issuance
Mea 41-1 a finds P the proj applicant shall
and its
Community
demolition
of demolition or
ensure that PCB abatement shall be conducted prior to
contractor(s) shall
Development
plans for
renovation
building demolition or renovation. PCBs shall be
retain a qualified
Department
inclusion of
permit.
r emoved by a qualified contractor and tralns in
contractor to
proper PCB
Boatworks Reduced Density Alternative (18 2) Res Identlal Project 15
Mitigation Monitoring and Deporting Program
MM RP
Boatworks Resident al Project 1
Wigation Monitoring Program
Monitorin
Implementation
Monitoring
and
(Monitoring
Mitigation (Measures Adopted as Conditions of
{Procedures
Responsibility
Reporting
Schedule
Approval
Action
accordance with Caltrans requirements.
reimove and
removal
transport PCBs in
accordance with
this measure and
altran
requirements.
MM 1-2a: The project applicant shall prepare a health
Project applicant
City of Alameda
Review and
Prior to issuance
and safety plan, based on the site conditions and past
and its
Community
approve
of demolition or
contaminant release history and rernedi Lion, by a
contractor shall
Development
health and
renovation
licensed industrial hygienist. The health and safety plan
retain a licensed
Department
safety plan
permit.
shall identify potential contaminants that may be
industrial hygienist
encountered, appropriate personal protective
to prepare a health
equipment, and worker safety procedures for spills and
and safety plan
accidents.
that adheres to all
specifications in
this measure.
11JiM 1-2b: To reduce environmental risk associated
Project applicant
City of Alameda
Review
Prior to issuance
with encountering contaminated soil discovered during
and its
Community
grading,
of grading and
grading and construction, the project applicant shall
contractors shall
Development
demolition
demolition
ensure that any suspected contaminated soil is
handle and test
Department
and
permits.
stockpiled separately, sampled for hazardous material
any suspected
construction
content, and disposed of in accordance with all
contaminated soil
plans for
applicable state, federal, and local lags and
in full adherence to
inclusion of
regulations. All contaminated soil determined to be
the specifications
contaminated
hazardous or nor- hazardous waste shall have received
of this measure
soil
all laboratory analyses for acceptable disposal as
and in accordance
guidelines
required by the receiving facility before it can be
with all applicable
removed from the site.
state, federal, and
local laws and
regulations
MM i -o: Prior to issuance of any building or grading
Project applicant
City of Alameda
Review
Prior to issuance
ppermits, any areas of identified contamination shall
and its
Community
report of
of building or
have completed all (measures re Mired b A DEN
contractor shall
Develop) nt
measures
grad ing permits
DTBC or RW B for site closure, and shall be certified
complete all
Department
completed
for residential use. Where necessry, additional
measures required
and
remedialtion to permit residential use and occupancy of
by A DEN, DT
certification
the project shall be accomplished by the project
or RWQCB for site
for residential
applicant prior to issuance of any building or grading
closure, and the
use.
plans.
site shall be
certified for
residential use
Boatworks Resident al Project 1
Wigation Monitoring Program
Exhibit City Impact Fees
Pursuant to section 3.3.2, the following impact fees will be collected prior to and
as a condition of final inspection on each residential unit in the project:
1. Construction Improvement Tax (AMC Section 3 -62
2. Community Planning Fee