Ordinance 3217CITY OF ALAMEDA ORDINANCE NO. 3217
New Series
WHEREAS, the Naval Air Station Alameda and the Fleet and Industrial Supply
Center, Alameda Annex and Facility ("NAS Alameda"), which encompasses the Naval
facilities and grounds comprising the western end of the City of Alameda ("City") and
consists of approximately 1,546 acres of real property, together with the buildings,
improvements and related other tangible personal property located thereon and all rights,
easements and appurtenances thereto, was decommissioned by the United States
Department of the Navy (the "Navy") in 1993 and closed in 1997; and
WHEREAS, the City is desirous of advancing the socioeconomic interests of the
City and its residents by promoting the productive use of the former NAS Alameda
consistent with the NAS Alameda Community Reuse Plan (the "Reuse Plan") adopted by
the Alameda Reuse and Redevelopment Authority ("ARRA") in 1996 and subsequently
amended in 1997, and by encouraging quality development and economic growth,
thereby enhancing employment opportunities for residents and expanding the City's
property tax base; and
WHEREAS, the United States, acting by and through the Navy, approved the
ARRA's Economic Development Conveyance Application and subsequently executed
that certain Memorandum of Agreement between ARRA and the Navy for the No -Cost
Economic Development Conveyance of Portions of the Former NAS Alameda, as such
subsequently amended (the "EDC Agreement"); and
WHEREAS, by operation of California State law, the Community Improvement
Commission, a member of the ARRA joint powers authority, ceased to exist on February
1, 2012. Accordingly, the ARRA, by Resolution No 55, dated January 31, 2012,
authorized the ARRA Executive Director to assign to the City of Alameda all of ARRA's
rights, assets, obligations, responsibilities, duties and contracts, including the EDC
Agreement, subject to the City accepting such Assignment; (ii) Department of Defense
designation of the City as the local reuse authority for NAS Alameda; and (iii) execution
of documents with the Navy necessary to implement the City as successor to ARRA; and
WHEREAS, pursuant to City of Alameda Resolution No. 14654, dated February 7,
2012, the City authorized the City Manager to accept the Assignment of all of ARRA's
rights, assets, obligations, responsibilities, duties and contracts, including the EDC
Agreement, subject to the Department of Defense designating the City as the local reuse
authority for NAS Alameda and the Navy executing documents necessary to implement
the City as successor to ARRA; and
WHEREAS, by letter dated April 4, 2012, the Department of Defense and the
Department of the Navy designated the City as the local reuse authority for NAS Alameda,
and accepted the City as the successor to ARRA; and
WHEREAS, on June 6, 2013, the Navy transferred approximately 1,379 acres,
including 509 acres of land and 870 acres of submerged land, at the Alameda Point
property pursuant to the EDC Agreement; and
WHEREAS, the amended Zoning Ordinance for Alameda Point required that a
specific plan be adopted for Main Street Neighborhood zoning sub -district. In
conformance with the Zoning Ordinance, the City Council adopted the Main Street
Neighborhood specific plan on March 21, 2017 ("Main Street Plan"); and
WHEREAS, the City is the fee title owner of (or has the right to acquire under that
certain No -Cost Economic Development Conveyance Agreement of Portions of the
former NAS Alameda with the United States Navy) that certain portion of Alameda Point
known as RESHAP, which is approximately 9.7 acres and is located at the entrance to
Alameda Point at Main Street and West Midway Avenue, and bounded by Orion Way (the
"Property"); and
WHEREAS, the RESHAP project is a 9.7 -acre supportive housing development at
Alameda Point, which consists of 267 very -low and low-income residential units, and
40,000 square feet of community -servings commercial uses (the "Project") replacing 200
existing supportive housing units located at NAS Alameda and providing an additional 67
units of inclusionary affordable housing units; and
WHEREAS, in furtherance of the Reuse Plan, the City desires to convey fee title
of the Property in specified phases to development entities to be composed of MidPen
Housing Corporation and one or more the other Developer Entities ("Developer Affiliates")
through execution of a Disposition and Development Agreement ("DDA") for the future
development of the Project and for the maintenance and creation of affordable housing;
and
WHEREAS, through the DDA, the City is imposing occupancy and affordability
restrictions on the Project in compliance with the City's Inclusionary Housing Ordinance,
the Renewed Hope Settlement Agreement, and the City's Density Bonus Regulations;
and
WHEREAS, the DDA and the City Regulatory Agreement attached as Exhibit K
will also constitute the Inclusionary Housing Agreement required under the City's
Inclusionary Housing Ordinance and the Affordable Housing Implementation Plan
required under the Density Bonus Regulations; and
WHEREAS, the DDA is being adopted in an effort to consolidate the existing
supportive housing community into a 9.7 acre parcel, to support ownership of land by the
supportive housing agencies, cause the construction of new infrastructure, construct
replacement and new, state-of-the-art affordable housing units, create economic
opportunity, and as such the City has voluntarily complied with the procedures for
noticing, hearing, documentation, and findings with reference to Government Code
Section 52201; and
WHEREAS, pursuant to Government Code Section 52201, the City has prepared
a report (the "Report") regarding the sale of the Property, the notice and availability for
inspection of which was given to the public in the manner prescribed by law.
WHEREAS, the City Council has conducted a duly noticed public hearing on the
DDA in accordance with Government Code Section 52201(a)(1) for the purpose of
receiving public input and comments on the DDA and the Report and the transactions
described therein; and
WHEREAS, the City Council finds that the economic interests of the City's
residents and the public health, safety and welfare will be best served by entering into the
DDA; and
WHEREAS, continued use and development of the Property in accordance with
the DDA is anticipated to provide substantial benefits and contribute to the provision of
needed infrastructure for area growth; and
WHEREAS, by Resolution No. 14891 the City Council previously certified the Final
Alameda Point Environmental Impact Report ("FEIR") (State Clearinghouse No.
201312043) under the California Environmental Quality Act ("CEQA"), California Public
Resources Code Section 21000 et seq. and adopted written findings and a Mitigation
Monitoring and Reporting Program ("MMRP") on February 4, 2014, for the Alameda Point
Project, including the Main Street Plan which contains the project site; and
WHEREAS, staff has prepared an Environmental Checklist for Streamlined
Review, which documents the application of the criteria for streamlining in Public
Resources Code Section 21083.3 and CEQA Guidelines Section 15183 and concludes,
based on substantial evidence, that no further review under CEQA is required; and
NOW THEREFORE, BE IT ORDAINED by the City Council of the City of Alameda
("City Council") that after hearing all qualified and interested persons and receiving and
considering all relevant evidence, finds and determines as follows:
Section 1.
An Environmental Impact Report for the proposed development of Alameda Point was
certified by the City Council in February 2014 pursuant to CEQA. An environmental
compliance checklist pursuant to Public Resources Code Section 21083.3 and CEQA
Guidelines Section 15183 was prepared and the City has determined that no further
environmental review is necessary as part of the approval of the DDA.
Section 2.
a. Pursuant to Government Code Section 52201(b) (1) the sale of the Property
as described in the DDA will assist in the creation of economic opportunity at Alameda
Point because the transfer will effectuate the Reuse Plan by facilitating the Project which:
1. Consolidates two -hundred (200) existing affordable housing units
and administrative offices located in former Navy buildings stretched across the 32 -acre
leasehold into a new affordable cohesive, high quality supportive housing campus on 9.7
acres and frees up the 22.8 acres for future development of market rate housing
consistent with the Main Street Plan;
2. Constructs sixty-seven (67) new affordable housing units that can be
used to satisfy the City's Inclusionary Housing requirements and the 2001 Renewed Hope
Settlement Agreement for the adjacent development;
3. Constructs approximately 40,000 square feet of community -serving
commercial spaces
4. Constructions approximately 20,000 square feet of interior parks,
walking paths and play areas and a centrally located space for community programming.
b. Pursuant to Government Code Section 52201(b), the City Council hereby
finds and determines that the sale of the Property and the resulting development of the
Property pursuant to the DDA will assist in the creation of economic opportunity, as that
term is defined in Government Code Section 52200.2. The finding and determination is
based on the facts and analysis set forth in the Recitals, the DDA Summary Report, the
public comment, which includes, but is not limited to:
1. The project will result in two hundred and sixty-seven (267)
residential units permanently restricted to occupancy by Very Low Income Households,
Low Income Households and Moderate Income Households, which will meet the
demonstrated affordable housing need of the City of Alameda, as defined and described
in the City's General Plan housing element.
2. The project meets the goals set forth in the adopted sustainable
community's strategy and is a project that specifically implements the goals of the
adopted sustainable community's strategy.
3. The project consolidates the existing affordable housing units thus
allowing 22.8 of the 32 acres currently occupied by the affordable housing to be
developed consistent with the Main Street Plan and Reuse Plan, providing opportunities
for market rate development that will provide additional needed infrastructure as well as
property tax growth.
Section 3.
a. The City Council hereby finds and determines that the conveyance of the
Property to the Developer pursuant to the DDA will assist in the elimination of blight and
will provide affordable housing. These findings and determinations are based on the facts
and analysis set forth in the Recitals and supporting documentation, including:
1. Development of the Property pursuant to the DDA will eliminate blight
by replacing deteriorating buildings and infrastructure with a high quality, supportive
housing complex which will include 267 affordable residential units and approximately
40,000 square feet of community -serving commercial spaces.
2. Development of the Property will result in local economic opportunity,
creation of affordable housing and serve as a catalyst for the redevelopment of and
revitalization of the Main Street neighborhood of the former NAS Alameda pursuant to the
Reuse Plan.
3. The development of the Project on the Property pursuant to the DDA
will implement the goals of the Reuse Plan by: (i) consolidating the supportive housing
community located over a 32 -acre area into 9.7 acre parcel; (ii) replacing two hundred
(200) existing affordable housing units currently in deteriorating former Navy buildings
and constructing sixty-seven (67) new high-quality affordable housing units; (iii) opening
up approximately 22 acres of developable land that will allow new infrastructure and
market rate development to be constructed; (ii) providing ownership opportunity to the
supportive housing organizations and permanently affordable housing to very -low and
low-income households.
Section 4.
The City Council hereby finds and determines that the execution and implementation of
the DDA, the sale of the property to the Developer and the development of the project
pursuant to the DDA constitutes a "common benefit" as defined in Government Code
Section 37350.
Section 5.
The City has the authority to dispose of the Property in accordance with the terms of the
DDA under Government Code Section 52201, authorizing disposition of property for
economic opportunities; and pursuant to Government Code Section 37350, authorizing
disposition of property for the common benefit of the community.
Section 6.
The Disposition and Development Agreement DDA-_, substantially in the form
attached as Exhibit A, is hereby adopted and the Acting City Manager is authorized to
sign it on or after the effective date of this Ordinance, subject only to such changes as
are approved by the City Attorney and the Acting City Manager and the Acting City
Manager is authorized to take all actions necessary to implement the DDA and to sign
such documents as are necessary to implement the intents and purposes of the DDA.
Section 7.
If any portion, section, subsection, paragraph, subparagraph, sentence, clause, phrase
or application of this Ordinance is held invalid or inapplicable by a final judgment of a
court of competent jurisdiction, such decision shall not affect the validity or applicability of
any other part of this Ordinance.
Section 8.
This Ordinance shall be in full force and effect from and after the expiration of thirty (30)
days from the date of its final passage.
Mayor of the City of Alameda
Attest:
Lara Weisiger, CitVZ.Lbrk
FOR ALAMEDA POINT - REBUILDING THE EXISTING SUPPORTIVE HOUSING
(RESHAP)
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement" or 'DDA")
is entered into as of , 2018 ("Effective Date") by and between the City of
Alameda, a California charter city (the "City"), and MidPen Housing Corporation, a California
nonprofit public benefit corporation ("MidPen"), Alameda Point Collaborative, a California
nonprofit public benefit corporation ("APC"), Building Futures With Women and Children, a
California nonprofit public benefit corporation ("Building Futures"), and Operation Dignity, a
California nonprofit public benefit corporation ("Operation Dignity"). Each of APC, Building
Futures and Operation Dignity is referred to herein as a "Collaborating Partner", and
collectively, "Collaborating Partners". MidPen and the Collaborating Partners are referred to
herein as the "Developer". MidPen and each of the Collaborating Partners are expected to form
limited partnerships to which certain development obligations will be assigned in which the
managing general partner is a limited liability company in which (1) MidPen or an affiliate in
which MidPen has a Controlling Interest is a member/manager and (2) one or more of the
Collaborating Partners or an affiliate in which the Collaborating Partner has a Controlling
Interest is also a member/manager, which limited partnerships are identified herein as
"Developer Affiliates." The City and the Developer are sometimes collectively referred to in
this Agreement as the "Parties," and individually as a "Party." The Parties have entered into this
Agreement with reference to the following facts:
RECITALS
A. This Agreement refers to and utilizes certain capitalized terms that are defined in
Section 16.1 of this Agreement. The Parties intend to refer to those definitions in connection
with their use in this Agreement.
B. The Naval Air Station Alameda and the Fleet and Industrial Supply Center,
Alameda Annex and Facility ("NAS Alameda"), which encompasses the Naval facilities and
grounds comprising the western end of the City of Alameda and consists of approximately 1,546
acres of real property, together with the buildings, improvements and related other tangible
personal property located thereon and all rights, easements and appurtenances thereto, was
decommissioned by the United States Department of the Navy (the "Navy") in 1993 and closed
in 1997.
C. In 1996 the Alameda Reuse and Redevelopment Authority (the "ARRA"), of
which the City is a member, the Local Reuse Authority under federal base closure law, approved
the NAS Alameda Community Reuse Plan (the "Reuse Plan"), as amended in 1997, to establish
a plan for the reuse and redevelopment of the property at the former NAS Alameda, a portion of
which (west of Main Street) is commonly referred to as Alameda Point. The Reuse Plan set forth
specific policy and planning goals and objectives with regards to the disposition and use of
property at the NAS Alameda, which are being implemented under this DDA.
D. In 2003 the City adopted a General Plan Amendment for Alameda Point, which
added Chapter 9 (Alameda Point) to the General Plan, in order to implement the community's
vision for the reuse of Alameda Point consistent with the goals of the Reuse Plan and other City
of Alameda policy documents.
E. The United States, acting by and through the Navy, approved the ARRA's
Economic Development Conveyance Application and subsequently executed that certain
Memorandum of Agreement between ARRA and the Navy for the No -Cost Economic
Development Conveyance of Portions of the Former NAS Alameda, as such subsequently
amended (the "EDC Agreement").
F. By operation of California State law, the Community Improvement Commission,
a member of the ARRA joint powers authority, ceased to exist on February 1, 2012.
Accordingly, the ARRA, by Resolution No 55, dated January 31, 2012, authorized the ARRA
Executive Director to assign to the City all of ARRA's rights, assets, obligations, responsibilities,
duties and contracts, including the EDC Agreement, subject to (i) the City accepting such
Assignment; (ii) Department of Defense designation of the City as the local reuse authority for
NAS Alameda; and (iii) execution of documents with the Navy necessary to implement the City
as successor to ARRA.
G. Pursuant to City of Alameda Resolution No. 14654, dated February 7, 2012, the
City authorized the City Manager to accept the Assignment of all of ARRA's rights, assets,
obligations, responsibilities, duties and contracts, including the EDC Agreement, subject to the
Department of Defense designating the City as the local reuse authority for NAS Alameda and
the Navy executing documents necessary to implement the City as successor to ARRA.
H. By letter dated April 4, 2012, the Department of Defense and the Department of
the Navy designated the City as the local reuse authority for NAS Alameda, and accepted the
City as the successor to ARRA.
I. In June 2012, the City Council directed City staff, upon acquisition of major
portions of Alameda Point, to complete the necessary Environmental Impact Report ("EIR"),
General Plan amendments, Zoning Ordinance amendments, including the creation of the
Alameda Point District (Alameda Municipal Code 30-4.24), and a Master Infrastructure Plan
("MIP") (collectively, the "Planning Documents") required to implement the Reuse Plan in
compliance with the California Environmental Quality Act ("CEQA"), the City of Alameda
General Plan and the Reuse Plan.
J. On June 6, 2013, the Navy transferred approximately 1,379 acres, including 509
acres of land and 870 acres of submerged land, at the Alameda Point property pursuant to the
EDC Agreement.
K. On February 4, 2014, the City Council approved the Planning Documents, which
included approval of a mixed-use, transit -oriented development consistent with the Reuse Plan
and General Plan and consists of the rehabilitation, reuse and new construction of approximately
5.5 million square feet of commercial and workplace facilities for approximately 8,900 jobs;
maritime and water related recreation uses in and adjacent to the Seaplane Lagoon, including a
new ferry terminal; rehabilitation and new construction of 1,425 residential units for a wide
variety of household types for approximately 3,240 residents. This DDA is intended to
implement certain goals and policies described in the approved Planning Documents with respect
to the Property.
L. The Planning Documents require all new development at Alameda Point to
comply with the Transportation Demand Management Plan for Alameda Point ("TDM Plan"),
which was approved by the City Council on May 20, 2014. The TDM Plan outlines a plan for
mitigating traffic impacts from new development during peak hours and supporting the creation
of a transit -oriented development at Alameda Point including the formation of a Transportation
Management Association and the establishment of fees or special taxes on developed property to
pay the costs of implementation of the TDM Plan. The Developer has prepared and upon
approval of the DDA, City will have approved a TDM Compliance Strategy for the Property, as
attached hereto as Exhibit J. Through this DDA and as a condition of development, each
Developer Affiliate shall be required to implement the terms of the approved TDM Compliance
Strategy.
M. The amended Zoning Ordinance for Alameda Point required that a specific plan
be adopted for the Main Street Neighborhood zoning sub -district. In conformance with the
Zoning Ordinance, the City Council adopted the Main Street Neighborhood specific plan on
March 21, 2017 ("Main Street Neighborhood Plan"). This DDA is intended to implement the
goals and policies described in the Main Street Neighborhood Plan.
N. The City is the fee title owner of that certain portion of Alameda Point consisting
of 9.7 acres, of which 9.1 acres are developable, and bounded by West Midway, Main Street, and
Orion Parkway, as more particularly described in Exhibit A and shown on the map of the
Property attached hereto as Exhibit B (the "Property").
O. The City currently leases certain property located within Alameda Point
consisting of 34 acres to individual members of the Collaborating Partners pursuant to the terms
of long term legally binding agreements ("Existing Leases") for 200 housing units and
administrative offices in existing former Navy structures ("Existing Structures"), In addition to
the Existing Leases, the City currently leases to APC certain property located within Alameda
Point for the Ploughshares Nursery and The Farm, which leases are intended to remain in effect
and unchanged by this Agreement. The Existing Leases were entered into pursuant to the Base
Closure Community Redevelopment and Homeless Assistance Act of 1994 which requires that
reasonable accommodations be made on closing military bases to meet the needs of the homeless
and sets forth procedures and standards describing how such accommodations are to be made.
P. In accordance with this Agreement and the Main Street Neighborhood Plan, the
City and the Developer plan to consolidate the existing 200 housing units and administrative
offices currently located in the Existing Structures on the 34 -acre leaseholds created by the
Existing Leases within a 9.7 -acre campus comprising the Property upon which partnerships
formed with MidPen and a Collaborating Partner will own, construct and operate new affordable
housing consisting of 267 affordable housing units and up to 40,000 square feet of community-
serving commercial spaces while releasing the property subject to the Existing Leases for
development consistent with the Main Street Neighborhood Plan.
Q. The Developer's plan for the Property includes the replacement of the 200
existing affordable housing units currently being provided pursuant to the Existing Leases with
200 newly constructed supportive affordable housing as well as the construction of an additional
67 newly constructed supportive affordable housing units in a cohesive new development. The
City and the Developer acknowledge that replacement of the Existing Structures with the Project
as contemplated in this Agreement meets the goals of the Base Closure Community
Redevelopment and Homeless Assistance Act and the terms of the Existing Leases related to the
provision of affordable housing meeting the needs of the homeless.
R. On December 15, 2015, pursuant to City Council authorization, the City and the
Developer entered into the Exclusive Negotiations Agreement (the "ENA") for purposes of
negotiating this Agreement.
S. The Developer understands and agrees that any proposed Project (defined below)
must be consistent with the Planning Documents, the TDM Plan, the TDM Compliance Strategy,
and the Main Street Neighborhood Plan, among other regulatory and policy documents, and that
this DDA is entered into in furtherance of and is intended to implement the goals and policies
contemplated by previously approved policy documents.
T. Pursuant to the terms of this Agreement, the City will convey and provide other
specified rights to the Property to Developer Affiliates, and the Developer Affiliates will develop
and construct a high quality, affordable supportive housing project that will serve extremely low-
income and low-income residents by providing housing and supportive services that will help to
break the cycle of homelessness and establish stability and opportunity in the lives of residents
and create a cohesive, pedestrian -friendly, and inviting community. The Developer proposes to
develop the following specified improvements consistent with the Main Street Neighborhood
Plan and the Planning Documents (collectively, the "Project"):
1. Two -Hundred (200) replacement residential units in newly constructed
buildings replacing the 200 units currently located in the Existing Structures (the "Replacement
Units");
2. Sixty -Seven (67) new residential units in newly constructed buildings
("New Residential Units" and with the Replacement Units, collectively, the "Residential
Units");
3. Approximately 40,000 square feet of permitted and conditionally
permitted community serving commercial spaces ("Commercial Space"); and
4. Potentially a replacement of the existing Midway Shelter with up to fifty-
four (54) emergency beds for BFWC in newly constructed buildings ("Emergency Shelter").
The Developer intends to implement the Project in up to four (4) separate phases (each a
"Phase"). Each Phase is more particularly described in the Phasing Plan attached as Exhibit C.
U. In accordance with the terms of the Agreement and as consideration for the City
conveying the Property, the Collaborating Partners shall be obligated to release the Existing
Leases from the Existing Structures and all encumbrances on the Existing Structures as set forth
in this Agreement and the Release Agreement attached hereto.
V. The City and the Developer understand that as a condition to development of the
Project on the Property certain backbone infrastructure and site improvements must be
constructed, consisting of demolition, geotechnical mitigation, rough grading, certified building
pads, construction of backbone streets and utilities stubbed to the Property consistent with the
MIP (collectively, the "Backbone Infrastructure" and more specifically described in Exhibit D)
prior to conveyance of the Property to Developer Affiliates. The Parties intend that the
Backbone Infrastructure will be developed by developers of the property adjacent to the
Property, including certain portions of property subject to one or more of the Existing Leases, as
part of the development of market rate housing consistent with the Main Street Neighborhood
Plan. The Parties intend that for this Agreement to be included as an exhibit for reference in the
disposition and development agreement with the developer of the adjacent property.
W. The New Residential Units are being constructed in compliance with the
Renewed Hope Settlement Agreement with the units to be affordable to very low and low
income households. The New Residential Units are being constructed in exchange for the
developers of the property adjacent to the Property paying for and installing the Backbone
Infrastructure and as such are intended to serve as the inclusionary units required for the
development of the adjacent property under the City's Inclusionary Housing Ordinance, as well
as the affordable housing units required pursuant to any density bonus waiver obtained by the
developers of the adjacent property.
X. This Agreement provides for the City's conveyance of the following rights to the
Property to the Developer Affiliates:
1. The conveyance of fee simple ownership of the Property in phases to
Developer Affiliates;
2. The conveyance of a temporary construction easements or encroachments
permits to portions of the Property or the adjacent property necessary for the construction of the
Project (the "ROE Property").
Y. This Agreement provides for the Collaborating Partners to terminate the Existing
Leases in accordance with the terms of this Agreement and the Release Agreement and to deliver
the property covered by the Existing Leases to the City free and clear of any encumbrances.
Z. Through this Agreement, the City is imposing occupancy and affordability
restrictions on the Project in compliance with the Renewed Hope Settlement Agreement and the
City's Inclusionary Housing Ordinance.
AA. On September 25, 2017, the Planning Board approved the Development Plan (the
"Development Plan").The EIR requires the implementation of certain CEQA mitigation
measures through the Mitigation Monitoring and Reporting Program, attached hereto as Exhibit
E (the "MMR Program"). The City as the "lead agency" has determined that no further
environmental review under CEQA is required based on CEQA Guidelines Section 15182 and
15183 and has made the required CEQA findings in connection with the EIR that has served as
the environmental documentation under CEQA for the City's consideration of approval of this
Agreement and the Project.
BB. The Property is affected by certain Hazardous Materials, which are addressed in
several Sections of this Agreement, in the MMR Program and in the Site Management Plan.
CC. Pursuant to Government Code Section 65402, the City's Planning Board has made
the findings of General Plan conformance with respect to the Development Agreement.
DD. Construction of the Project will substantially improve the physical conditions of
the Property and the City in accordance with the purposes and goals set forth in the Reuse Plan,
the City's General Plan, the Main Street Neighborhood Plan, and the Planning Documents. This
Agreement is declaratory of the policy goals and objectives of the various policy documents
previously considered and adopted governing the development and disposition of property at the
NAS Alameda. The execution and implementation of this DDA is an administrative action, in
that it pursues plans and policies that have previously been adopted by the various public
agencies with regards to the development of the NAS Alameda generally, and the Property in
particular.
EE. MidPen and the Collaborating Partners have represented that they have the
necessary experience, skill, and ability to carry out their respective commitments contained in
this Agreement.
WITH REFERENCE TO THE FACTS RECITED ABOVE, the City and the Developer
agree as follows:
TERM OF THE AGREEMENT
Effective Date. The Effective Date of this Agreement is stated in the first paragraph of
this Agreement and represents that date which is thirty (30) days after the date the Ordinance
approving this Agreement is adopted by the City Council. This Agreement shall be executed by
the City within ten (10) days after the Effective Date and a DDA Memorandum substantially in
the form attached as Exhibit F (the "Memorandum") will be recorded in the public records with
the Alameda County Recorder (the "Official Records") against the Property owned by the City
as of the Effective Date.
Term. This Agreement shall commence on the Effective Date and end on the earliest of:
(a) , 2028 (the "Expiration Date") which is ten (10) years from the Effective
Date; (b) the date of any termination of this Agreement in accordance with the provisions hereof;
or (c) the date of issuance by the City of the final Estoppel Certificate of Completion for the last
Phase of Vertical Improvements ("Term").
Extension of the Term. Except as a result of the express extension rights set forth in this
Section 1.3, the Term of this Agreement shall not extend beyond the Expiration Date, unless and
until the City Council, in its sole discretion, approves such an extension amending the
Agreement to provide for a term beyond the initial Term.
In the event that the Backbone Infrastructure has not been completed by the
Outside Date set forth in the Milestone Schedule and there is no existing Developer Event of
Default under this Agreement, the Term of this Agreement shall be automatically extended by
the number of months of delay in the completion of the Backbone Infrastructure to account for
the delay in the completion of the Backbone Infrastructure, provided, however, no such
extension shall exceed a total of five (5) years. By way of example, if the Outside Date for the
completion of the Backbone Infrastructure in the Milestone Schedule is June 2022 but the actual
projected completion date for the Backbone Infrastructure is extended to January 2024, the Term
of this Agreement will be extended by 19 months to account for the delay in the completion of
the Backbone Infrastructure. Nothing in this Section 1.3 shall be construed to limit the scope or
duration of those obligations that expressly survive the expiration or termination of this
Agreement.
The City Manager may grant extensions of the Term in addition to any extension
pursuant to Section 1.3(a) in the event that MidPen and the Collaborating Partners demonstrate
to the City Manager's satisfaction that they are making progress toward Completion of the
Vertical Improvements, provided, however, any such extension shall not be for longer than one
(1) year and cumulatively any such extensions granted by the City Manager pursuant to this
section shall not exceed five (5) years. Any such extension granted pursuant to this Section shall
be memorialized in an Operating Memorandum in accordance with Section 15.16.
Force Majeure. In addition to the extensions set forth in Section 1.3, either Party has the
right to extend the applicable Milestone Schedule (and all subsequent Milestone Schedule dates)
by Force Majeure. Force Majeure shall mean delay caused by any of the following: strikes, lock
outs or other labor disturbances; one or more acts of a public enemy; war; riot; sabotage;
blockade; freight embargo; floods; earthquakes; fires; unusually severe weather; quarantine
restrictions; lack of transportation; court order; delays resulting from changes in any applicable
laws, rules, regulations, ordinances or codes; delays resulting from Hazardous Material Delay;
litigation that enjoins construction or other work on the Project or any portion thereof, causes a
lender to refuse to fund, disburse or accelerate payment on a loan, or prevents or suspends
construction work on the Project except to the extent caused by the Party claiming an extension
and provided further that the Party subject to such litigation is actively mounting a defense to
such litigation; inability to secure necessary labor, materials or tools (provided that the Party
claiming Force Majeure has taken reasonable action to obtain such materials or substitute
materials on a timely basis); a development moratorium, as defined in section 66452.6(f) of the
California Government Code; and any other causes beyond the reasonable control and without
the fault of the Party claiming an extension of time to perform that prevents the Party claiming
an extension of time from performing its obligations under this Agreement.
The extension of time for force majeure events shall be from the time the Party claiming the
extension provides written notice to the other Party in accordance with Section 15.1 of the event
that gave rise to such period of delay which notice shall specify the Milestone Dates that are
being extended. The extension of time shall continue until the date that the cause for the
extension no longer exists or is no longer applicable at which time the applicable Milestone
Dates (and all subsequent Milestone Schedule dates affected by the force majeure event) will be
adjusted to account for the extension period, provided however no Party may request or claim
extensions pursuant to this Section 1.4 for a cumulative period in excess of five (5) years.
Milestone Schedule. During the Term, MidPen, the Collaborating Partners, and the City
will each be required to perform certain tasks and to fulfill certain obligations as set forth in this
Agreement, the Exhibits and other implementing documents. A schedule of the deadlines for
performance of various conditions and requirements under this Agreement is set forth in the
Milestone Schedule attached as Exhibit G. Major Milestone Dates shall be the Outside Phase
Closing Dates, the dates for commencement and completion of relocation of the residents of the
Existing Structures and the Commencement and completion of Construction of each Phase.
Major Milestone Dates may be (a) extended pursuant to Sections 1.3 or 1.4 or (b) modified by an
amendment to this Agreement approved by the Developer and the City in accordance with
Section 15.16. All deadlines set forth in the Milestone Schedule that are not considered Major
Milestone Dates are considered "Progress Milestone Dates." The Parties shall make
commercially reasonable efforts to meet the Progress Milestone Dates but failure to meet a
Progress Milestone Date shall not be considered an Event of Default pursuant to Sections 14.3
and 14.4 unless, as a result of such failure, it would be impossible for a Major Milestone Date (as
such date may be extended pursuant to Sections 1.3 or 1.4) to be met. If a Party fails to meet a
Progress Milestone Date, either Party can require the other Party to meet and confer regarding
the impact to the Milestone Schedule of such failure with the goal of the Parties reaching mutual
agreement on adjustments to the Progress Milestone Dates in the Milestone Schedule. Any Party
receiving a request to meet and confer shall participate in the meet and confer within thirty (30)
days of receipt of notice from the other Party.
LAND PAYMENT
Land Payment. In accordance with the terms of this Agreement, the City will convey to
the Developer Affiliate the Property or applicable portion thereof improved with the Backbone
Infrastructure in exchange for the Collaborating Partners terminating the Exiting Leases,
relocating at their own costs the current occupants of the Existing Structures subject to the
covenants and conditions in this Agreement and removing any encumbrances, on the property
subject to the Existing Leases. The City has determined that the Collaborating Partners' release
of their rights and claims under the Existing Leases as well as the Developer's agreement to meet
the requirements contained in the 2001 Renewed Hope Settlement Agreement and meet the
Inclusionary Housing Ordinance requirements for the Main Street Neighborhood with the City
equals or exceeds the value of the Property to be conveyed to the Developer Affiliates. The
Developer and the City have determined that the Property is to be conveyed pursuant to this
Agreement for One Dollar ($1.00) (the "Land Payment") for each Phase
FINANCING AND PHASING PLAN
Financing Plan. MidPen has submitted to the City a financing plan for the Project
("Project Financing Plan" dated February 14, 2018 which Project Financing Plan shall be
updated when each Phase Update is submitted to the City pursuant to this Section 3.1. The City
shall use good faith efforts to assist Developer in submission of funding applications for each
Phase.
Phase Update. MidPen shall submit to the City an update to the Project Financing
Plan with respect to each Phase (each "Phase Update") for the City's review and approval
pursuant to Section 3.2 prior to the applicable date in the Milestone Schedule that contains the
following documents and information, which shall be included as an update to the corresponding
information for the applicable Phase that was previously included in the Project Financing Plan:
A breakdown of the number of Affordable Units to be developed and
rented within the Phase including the number of Affordable Units to be rented to Very Low
Income Households, Extremely Low Income Households and Low Income Households.
An updated "sources and uses" breakdown of the costs of constructing the
Phase, and an updated operating proforma for the Phase. Such updated sources and uses
breakdown and operating proforma shall reflect MidPen's then current expectations for funding
sources and development costs.
Copies of funding commitments for any financing source, including loans
and grants, in amounts sufficient to demonstrate that the Phase is financially feasible and copies
of any funding commitments for all other financing required to develop and operate the Phase. If
at the time of submission of the Phase Update, MidPen does not have commitments from all
sources of financing, the Phase Update shall include information on MidPen's actions to obtain
such financing commitments and MidPen's estimate of the likelihood of receiving such financing
commitments.
A Tax Credit Reservation from TCAC and a letter of intent from an
investor for equity funding for the Phase in an amount that when combined with the other
sources of financing committed to the Phase demonstrates that the Phase is financially feasible,
or if MidPen has not applied for tax credits at the time of submission, the Phase Update shall
include MidPen's projected date for submitting an application for tax credits, the requirements
for submitting an application that is likely to score sufficient points to receive a Tax Credit
Reservation and MidPen's estimation of the feasibility of meeting those requirements within the
time frame set out in the Phase Update.
Any other information reasonably requested by the City that would assist
the City in determining that MidPen and each applicable Developer Affiliate has the financial
capability to pay all costs of constructing the Phase and operating the Phase
An update to the Project Financing Plan for the balance of the Project.
The update to the Project Financing Plan shall include the level of detail included in the original
Project Financing Plan.
Review of FinancingPl� an Updates By City. Upon receipt by the City of the proposed
Phase Update, the City Manager shall either approve or disapprove in writing the submitted plan
or update within thirty (30) days from the date the City Manager receives the proposed plan or
update. If the proposed plan or update is not approved by the City Manager, then the City
Manager shall notify MidPen in writing of the reasons for disapproval and the required revisions
to the previously submitted plan or update. MidPen shall thereafter submit a revised plan or
update within thirty (30) days of the notification of disapproval. The City Manager shall either
approve or disapprove in writing the submitted revised Phase Update within thirty (30) days of
the date such revised plan or update is received by the City. The City Manager shall approve the
initial or revised plan or update if (i) it contains the elements described in the definition of the
Phase Update as applicable, contained in Section 3.1 above, (ii) demonstrates sufficient funding
to pay the total development costs of the Project or Phase, as applicable and all other applicable
obligations of the Developer under this Agreement. If the City disapproves the revised proposed
Phase Update, this Agreement may be terminated pursuant to Article 14. If, at the time of
submission of the Phase Update, the Developer does not have commitments for all financing
required to pay for the costs of constructing the Phase and a Tax Credit Reservation, the City
Manager, in his or her sole discretion, may conditionally approve the Phase Update, in which
event, the City's conditional approval will require that MidPen submit amendments to the Phase
Update demonstrating progress on obtaining the necessary financing within time frames to be
determined by the City based on information provided by MidPen in the submitted Phase
Update. The City shall not be obligated to convey the applicable portion of the Property to a
Developer Affiliate until the City has unconditionally approved a Phase Update.
MidPen shall submit any material revision to an approved Phase Update to the
City Manager for his/her review and approval. Any proposed revised Phase Update shall be
considered and approved or disapproved by the City Manager in the same manner and according
to the same timeframe set forth above for the initial plan or update. Until a revised plan or
update is approved by the City Manager, the previously approved Project Financing Plan or
Phase Update shall govern the financing.
Quarterly Reports. In addition to the Phase Update required above, MidPen shall on a
quarterly basis submit to the City for its review a progress report on funding applications for the
development of the Project.
Phasing Plan. Attached as Exhibit C is the parties' initial Phasing Plan for the Project.
Development of the Project is dependent upon the construction of the Backbone Infrastructure by
the developers of the adjacent property within the Main Street Neighborhood Plan area. MidPen
shall provide the City with an updated Phasing Plan within the time set forth in the Milestone
Schedule once the City has entered into an Exclusive Negotiating Rights Agreement with the
market rate developer of the adjacent property ("Market Rate Developer"). The City shall
provide MidPen with updates on the proposed development schedule for the adjacent property
during the negotiating period with the market rate developer with the intent that the updated
Phasing Plan and the development schedule for the market rate development are consistent.
Upon receipt by the City of the updated Phasing Plan, the City Manager shall either approve or
disapprove in writing the submitted Phasing Plan within thirty (30) days from the date the City
Manager receives the proposed Phasing Plan. If the proposed Phasing Plan is not approved by
the City Manager, then the City Manager shall notify MidPen in writing of the reasons for
disapproval and the required revisions to the previously submitted Phasing Plan. MidPen shall
thereafter submit a revised Phasing Plan within thirty (30) days of the notification of disapproval.
The City Manager shall either approve or disapprove in writing the submitted revised Phasing
Plan within thirty (30) days of the date such revised plan or update is received by the City.
Notwithstanding the above approval process, MidPen must receive approval of the updated
Phasing Plan within the time set forth in the Milestone Schedule.
Opening Escrow. The Closing of any Phase shall be completed through Escrow and the
applicable Parties shall execute and deliver to the Escrow Holder joint written instructions that
are consistent with this Agreement.
Close of Escrow. Subject to the satisfaction of the applicable conditions precedent set
forth in Sections 4.3(a) and (b) and any extensions pursuant to Section 1.3 or 1.4 above, escrow
shall close no later than thirty (30) calendar days after all conditions precedent to the applicable
Closing set forth in Section 4.3 have been met, provided however, in all events the transfer of the
portion of the Property applicable to each Phase ("Transfer Property") to the Developer
Affiliate must occur no later than the Outside Phase Closing Date set forth in the Milestone
Schedule (each, an "Outside Phase Closing Date") (each such, the "Closing Date").
On the applicable Closing Date, the City shall: convey to the applicable Developer
Affiliate the applicable portions of the Property pursuant to a Quitclaim Deed substantially in the
form of Exhibit H.
Conditions Precedent to Closing.
Conditions Precedent to the City's Obligation. tion. The obligation of the City to
consummate the transactions hereunder shall be subject to the fulfillment on or before the
applicable Outside Phase Closing Date (as such date may be extended pursuant to this
Agreement) of the following applicable conditions, any or all of which may be waived by the
City in its sole discretion:
The Developer Affiliate has submitted to the City and the City Manager
has approved the organizational documents for the Developer Affiliate intending to take title to
the applicable Phase;
The applicable Developer and the Developer Affiliate shall have executed
an assignment and assumption of this Agreement whereby the Developer Affiliate assumes all of
the obligations in this Agreement applicable to the applicable Phase, in a form approved by the
City Attorney;
The Developer Affiliate shall have obtained binding commitments for the
necessary financing (including debt and tax credit equity) for the applicable Phase, consistent
with the approved Financing Plan and the construction financing providers are prepared to close
simultaneously with the Closing on the Transfer Property;
There are no uncured Developer Events of Default;
The DDA Memorandum shall have been recorded against the applicable
Phase;
The Developer Affiliate or MidPen has timely submitted to the City and
the City has reviewed and approved all of the submittals required under this Agreement for the
applicable Phase, including but not limited to, the approval of the applicable Phase Update to be
submitted prior to the Closing Date. The Developer Affiliate or MidPen shall have submitted to
the City within the time set forth in the Milestone Schedule, evidence in the form reasonably
satisfactory to the City Manager that any conditions to the release or expenditure of funds
described in the applicable approved Phase Update Financing Plan have been met or will be met
at the Closing on any Phase and that such funds will be available at the Closing for the
construction of the applicable Phase. Such satisfactory evidence may consist of letters from the
funding sources identified in the approved Phase Update Financing Plan stating that the
applicable funds, in the amounts called for in the approved Phase Update Financing Plan, will be
available to the Developer Affiliate for the construction of the applicable Phase at the time of
Closing or such later time as called for in the Phase Update Financing Plan. Only upon delivery
of such evidence in form satisfactory to the City Manager shall this condition be deemed met;
A Final Map for the applicable Phase has been approved and recorded;
The Developer shall have submitted to the City and the City Manager shall
have approved covenants; conditions and restrictions governing the use of the common area of
the Property for the benefit of all of the owners and occupants of the Property ("Project
CC&Rs");
The Developer Affiliate or MidPen shall have submitted to the City and
the City Manager shall have approved the Vertical Improvement Completion Assurances for the
applicable Phase;
The Developer Affiliate or MidPen has submitted all certificates of
insurance in form reasonably satisfactory to the City Risk Manager demonstrating compliance
with the insurance requirements in Article 13;
The Developer Affiliate or MidPen shall have obtained all Supplemental
Approvals required under Section 5.3, including the payment of the required building permit fees
for the applicable phase; and
Each of the Collaborating Partners shall have executed the Release
Agreement substantially in the form attached hereto and shall have obtained releases for any
encumbrances on the Collaborating Partner's Existing Structures or the leasehold created by the
Existing Lease ("Encumbrance Releases"), which Release Agreement and Encumbrance
Releases may be deposited in escrow along with escrow instructions signed by both the City and
the applicable Collaborating Partner regarding the timing of the recordation of the Release
Agreement and Encumbrance Release.
If one or more of the foregoing conditions precedent is not satisfied or waived in writing by the
City prior to the applicable Outside Closing Date (as such date may be extended pursuant to this
Agreement), the City may declare a Developer Event of Default and the City shall have the
rights and remedies set forth in Sections 14.2 or 14.4, as applicable.
Conditions Precedent to the Developer Affiliate's Obligation. The obligation of
the applicable Developer Affiliate to consummate the transactions hereunder shall be subject to
the fulfillment on or before the applicable Outside Phase Closing Date (as such date may be
extended pursuant to this Agreement) of the following applicable conditions, any or all of which
may be waived by the applicable Developer Affiliate in its sole discretion:
Such Developer Affiliate shall have obtained binding commitments for the
necessary financing (including debt and tax credit equity) for the applicable Phase, consistent
with the approved Financing Plan;
The Backbone Infrastructure necessary to serve the Phase pursuant to
Section 8.3 of this Agreement has been completed;
The Regional Water Quality Control Board and the Navy have either
approved development of the applicable Phase in accordance with this Agreement or a No
Further Action ("NFA") Letter has been issued for the applicable Phase allowing development of
the Phase in accordance with this Agreement and the Developer Affiliate has agreed to
implement any conditions contained in the Regional Water Quality Control Board and the Navy's
approval or the NFA necessary to allow development of the Phase in accordance with this
Agreement;
The DDA Memorandum shall have been recorded against the applicable
Phase;
Such Developer Affiliate shall have received confirmation from the
Escrow Holder that the Escrow Holder is irrevocably committed (upon payment of the applicable
premium and the Close of Escrow) to issue the applicable Title Policy to such Developer
Affiliate in the form required by Section 4.7;
There has been no material adverse change in the physical condition of the
Phase that would render the Phase unsuitable for the development of the Phase pursuant to the
Project Approvals in the time period between Effective Date and the applicable Closing Date;
There shall have been no enacted or proposed building or utility hook-up
moratoria, ordinances, laws or regulations, which were not existing as of the Effective Date and
that would prohibit or materially delay or hinder the issuance of building permits or certificates
of occupancy for units within the Project;
There is no pending or threatened suit, action, arbitration, or other legal,
administrative, or governmental proceeding or investigation that affects the applicable Phase or
the development of the applicable Phase pursuant to the Project Approvals, or that adversely
affects the City's ability to perform its obligations under this Agreement;
All of the representations and warranties of the City contained in this
Agreement shall be true and correct in all material respects as of the date of Closing;
There are no uncured City Events of Default;
The City has provided such Developer Affiliate with the right of entries,
encroachment permits and/or temporary construction easements reasonably necessary to
construct any off-site improvements allocated to the applicable Phase (the "Off -Site Rights of
Entry");
The Development Agreement and the Project Approvals shall be in full
force and effect and not subject to administrative appeal, legal challenge or referendum; and
The completion of any environmental review required by HUD pursuant
to NEPA necessary as a result of any federal funds used for the development of the Project.
If one or more of the foregoing conditions precedent is not satisfied or waived in writing
by the applicable Developer Affiliate prior to the applicable Outside Closing Date (as the same
may be extended pursuant to the terms of this Agreement), the Developer Affiliate shall have the
rights and remedies set forth in Sections 14.2 or 14.3, as applicable.
Closing; Deliverables.
City Deliverables. At least one (1) business day prior to the Closing Date for each
Phase, the City shall deliver the following to Escrow Holder:
a duly executed and notarized original Quitclaim Deed conveying the
applicable Phase Transfer Property to the Developer Affiliate in the form substantially similar to
Exhibit I attached hereto;
a duly executed and notarized original of the City Regulatory Agreement
in the form substantially similar to Exhibit K attached hereto;
if applicable, a duly executed original of all required Off -Site Rights of
Entry;
two (2) duly executed original counterparts of the general assignment
conveying any interest in the intangible property applicable to such Phase Transfer Property in
the form substantially similar to Exhibit L (the "General Assignment");
if applicable, a duly executed bill of sale for the personal property
applicable to the applicable Phase Transfer Property in the form substantially similar to Exhibit
M (the "Bill of Sale");
a duly executed and notarized original of the notice of the City's release of
environmental claims set forth in Section 4.6(h) below in substantially the form substantially
similar to Exhibit 0-1 (the "Notice of City Release of Environmental Claims");
a FIRPTA certificate and a CA Real Estate Withholding Certificate, each
duly executed by the City;
such evidence as the Escrow Holder may reasonably require as to the
authority of the person or persons executing documents on behalf of the City;
an executed closing statement reasonably acceptable to the City;
if applicable executed escrow instructions providing directions to the
Escrow Holder regarding the recordation of the Release Agreement and Encumbrance Releases;
and
such affidavits and other documents that are consistent with this
Agreement and which are reasonably required by the Escrow Holder.
Developer Affiliate Deliverables. At least one (1) business day prior to the
Closing Date for each Phase, the applicable Developer Affiliate shall deliver to Escrow Holder:
a duly executed and notarized original Quitclaim Deed conveying the
applicable Phase Transfer Property to the Developer Affiliate in the form substantially similar to
Exhibit I attached hereto
a duly executed Release Agreement (Exhibit Q);
all fully executed and acknowledged Encumbrance Releases necessary to
remove any encumbrances on property leased pursuant to an Existing Lease to the Collaborating
Partner that is a member of the Developer Affiliate;
if applicable, executed escrow instructions providing directions to the
Escrow Holder regarding the recordation of the Release Agreement and Encumbrance Releases;
a duly executed and notarized City Regulatory Agreement in the form
substantially similar to Exhibit K attached hereto;
a duly executed and notarized Project CC&Rs;
two (2) duly executed original counterparts of the General Assignment
(Exhibit L);
a duly executed and notarized original of the notice of the Developer's
release of environmental claims set forth in Section 4.6(f) below in substantially the form
substantially similar to Exhibit 0-2 (the "Notice of Developer Release of Environmental
Claims");
duly executed Vertical Improvement Completion Assurances;
such evidence as the Escrow Holder may reasonably require as to the
authority of the person or persons executing documents on behalf of the Developer Affiliate;
Affiliate; and
an executed closing statement reasonably acceptable to the Developer
such affidavits and other documents that are consistent with this
Agreement and which are and reasonably required by the Escrow Holder.
Condition of Title. The City may convey each Phase of the Transfer Property to the
applicable Developer Affiliate pursuant to a metes and bounds legal description approved by the
City and the applicable Developer Affiliate in accordance with the provisions of Government
Code Section 66426.5.
"Permitted Exceptions" means the following liens, encumbrances, clouds and
conditions, rights of occupancy or possession, as they may relate to the Property:
applicable building and zoning laws and regulations;
the provisions of this Agreement as evidenced by the DDA Memorandum;
the provisions of the applicable Quitclaim Deed;
the provisions of the quitclaim deed conveying the applicable portion of
the Property from the Navy to the City provided such provisions are consistent with and not
more onerous than the terms contained in the quitclaim deeds listed on Exhibit O.
any lien for current taxes and assessments or taxes and assessments
accruing subsequent to recordation of the Quitclaim Deed, including but not limited to the TDM
Special Tax Lien;
the Site Management Plan related to hazardous materials as long as the
terms of the Site Management Plans are consistent with and not more onerous than the Site
Management Plan listed on Exhibit P;
the terms of any Covenant to Restrict Use of Property Environmental
Restrictions applicable to the Transfer Property (the "CRUD") provided that the terms of the
applicable CRUP are consistent with and not more onerous than the terms of the CRUPs listed
on Exhibit P;
the terms of the Declaration of Covenants, Conditions and Restrictions
Providing for Reciprocal Easement, Joint Use and Maintenance dated June 28, 2017, as such
Declaration may be amended from time to time ("Master CC&Rs");
liens, encumbrances, clouds and conditions, rights of occupancy or
possession shown as exceptions in the Preliminary Title Report including but not limited to
exceptions, covenants, conditions and restrictions imposed by the Navy, the State of California
or any other regulatory entity. Upon receipt of the Preliminary Title Report, the applicable
Developer Affiliate, MidPen and the City shall cooperate to remove any exceptions that are
unacceptable to the applicable Developer Affiliate, provided however, the City shall not be
obligated to incur any costs related to the removal of any such exceptions and the applicable
Developer Affiliate or MidPen shall not deem any exceptions that are consistent with the
Permitted Exceptions set forth in this Section 4.5(a) unacceptable;
any other matters approved by the applicable Developer Affiliate.
Condition of the Property.
Disclosure. In fulfillment of the requirements of Health and Safety Code Section
25359.7(a), the City has provided MidPen and the Collaborating Partners with copies of the
documents in its possession related to hazardous materials affecting the Property (the
"Hazardous Materials Documents") as set forth in Exhibit N. To the best of the City's
knowledge, the Hazardous Materials Documents depict the condition of the Property with
respect to the matters covered in such documents as of the date of such documents and as of the
Effective Date. The City is not liable or bound in any manner by any oral or written statements,
representations or information pertaining to the Property furnished by any contractor, agent,
employee, servant or other person, except for the express representations contained herein.
Developer Investigation. The Developer and its agents have had the right and
adequate opportunity to enter onto the Property for the purpose of taking materials samples and
performing tests necessary to evaluate the development potential of the Property and to
undertake tests related to the existence of Hazardous Materials on the Property.
"As is" Purchase. Except for the representations and warranties and covenants of
the City contained in this Agreement, the Developer specifically acknowledges and agrees that
the City is selling and each Developer Affiliate is buying the Property on an "as is with all
faults" basis, and that the Developer Affiliate is not relying on any representations or warranties
of any kind whatsoever, express or implied, from the City as to any matters concerning the
Property, including without limitation: (1) the quality, nature, adequacy and physical condition
of the Property (including, without limitation, topography, climate, air, water rights, water, gas,
electricity, utility services, grading, drainage, sewers, access to public roads and related
conditions); (2) the quality, nature, adequacy, and physical condition of soils, geology and
groundwater; (3) the existence, quality, nature, adequacy and physical condition of utilities
serving the Property; (4) the development potential of the Property, and the Property's use,
habitability, merchantability, or fitness, suitability, value or adequacy of the Property for any
particular purpose; (5) the zoning or other legal status of the Property or any other public or
private restrictions on the use of the Property; (6) the compliance of the Property or its operation
with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and
restrictions of any governmental or quasi -governmental entity or of any other person or entity;
(7) the presence or absence of Hazardous Materials on, under or about the Property or the
adjoining or neighboring property; and (8) the condition of title to the Property.
No Warranties by City and No Reliance by Developer. Except for the
representations and warranties and covenants of the City contained in this Agreement,
the Developer affirms that the Developer has not relied on the skill or
judgment of the City or any of its elected and appointed officials, board members,
commissioners, officers, employees, attorneys, agents or volunteers to select or furnish the
Property for any particular purpose,
that the City makes no warranty that the Property is fit for any particular
purpose,
the Developer acknowledges that it shall use its independent judgment and
make its own determination as to the scope and breadth of its due diligence investigation which it
made relative to the Property and shall rely upon its own investigation of the physical,
environmental, economic and legal condition of the Property (including, without limitation,
whether the Property is located in any area which is designated as a special flood hazard area,
dam failure inundation area, earthquake fault zone, seismic hazard zone, high fire severity area
or wildland fire area, by any federal, state or local agency);
as of the Closing of each Phase and with respect to that Phase only, the
Developer Affiliate acquiring that Phase undertakes and assumes all risks associated with all
matters pertaining to the Property's location in any area designated as a special flood hazard area,
dam failure inundation area, earthquake fault zone, seismic hazard zone, high fire severity area
or wildland fire area, by any federal, state or local agency.
Without limiting the generality of the foregoing provisions of this subsection 4.6(d), except for
the representations and warranties and covenants of the City contained in this Agreement, the
Developer specifically acknowledges and agrees that as between the Developer and the City, the
City shall have no responsibility for the suitability of the Property for the development of the
Project.
Acknowledgment. The Developer acknowledges and agrees that: (1) to the
extent required to be operative, the disclaimers of warranties contained in this Section 4.6 are
"conspicuous" disclaimers for purposes of all applicable laws and other legal requirements; (2)
the disclaimers and other agreements set forth in this Section 4.6 are an integral part of this
Agreement; and (3) the City would not have agreed to sell the Property (or any Phase thereof) to
the Developer or Developer Affiliate without the disclaimers and other agreements set forth in
this Section 4.6. Nothing set forth in this Section 4.6 is intended to affect Developer's or
Developer Affiliate's remedies in the event of a default by City in the payment and/or
performance of its obligations under this Agreement.
Developer's Release of the City. Effective as of the Closing Date for each Phase
and solely with respect to the portion of the Property included in such Phase, the Developer and
each of them, on behalf of itself and anyone claiming by, through or under the Developer
(including, without limitation, any successor owner of the applicable Phase) hereby waives its
right to recover from and fully and irrevocably releases the City, its elected and appointed
officials, board members, commissioners, officers, employees, attorneys, agents, volunteers and
their successors and assigns (the "City Released Parties") from any and all actions, causes of
action, claims, costs, damages, demands, judgments, liability, losses, orders, requirements,
responsibility and expenses of any type or kind (collectively "Claims") that the Developer may
have or hereafter acquire against any of the City Released Parties arising from or related to:
Claims Related to the Applicable Phase; (A) the condition (including any
construction defects, errors, omissions or other conditions, latent or otherwise), valuation,
salability or utility of the applicable Phase or any improvements thereon, or its suitability for any
purpose whatsoever; (B) any presence of Hazardous Materials that were existing at, on, or under
the applicable Phase as of the Phase Closing Date and; and (C) any information furnished by the
City Released Parties related to the applicable Phase under or in connection with this Agreement.
Claims for Incidental Mi a�;r tion: the Incidental Migration of Hazardous
Materials that existed as of the applicable Phase Closing Date from any portion of the NAS
Alameda property acquired by the City to the applicable Phase, whether such Incidental
Migration occurs prior to or after the applicable Phase Closing Date.
Notwithstanding the foregoing provisions of this Section or anything to the contrary herein,
nothing herein shall negate, limit, release, or discharge the City Released Parties in any way
from, or be deemed a waiver of any Claims by the Developer (or anyone claiming by, through or
under the Developer, including, without limitation, any successor owner of the applicable Phase)
with respect to (i) any fraud or intentional concealment or willful misconduct committed by any
of the City Released Parties, (ii) any premises liability or bodily injury claims accruing prior to
the applicable Phase Closing Date to the extent such claims are not based on the acts of the
Developer, its partners or any of their respective agents, employees, contractors, consultants,
officers, directors, affiliates, members, shareholders, partners or other representatives (the
"Developer Parties"); (iii) any violation of law by any of the City Released Parties prior to the
applicable Phase Closing Date; (iv) any breach by the City of any of the City's representations,
warranties or covenants expressly set forth in this Agreement; or (v) the release (including
negligent exacerbation but excluding Incidental Migration) of Hazardous Materials by the City
Parties at, on, under or otherwise affecting the applicable Phase or (vi) any claim that is actually
accepted as an insured claim under any pollution legal liability policy maintained by the City
(collectively, the "Excluded Developer Claims").
Scope of Release. The release set forth in subsection 4.6(f) includes Claims of
which the Developer is presently unaware or which the Developer does not presently suspect to
exist which, if known by the Developer, would materially affect the Developer's release of the
City Released Parties. The Developer specifically waives the provision of any statute or
principle of law that provides otherwise. In this connection and to the extent permitted by law,
the Developer agrees, represents and warrants that the Developer realizes and acknowledges that
factual matters now unknown to the Developer may have given or may hereafter give rise to
Claims which are presently unknown, unanticipated and unsuspected, and the Developer further
agrees, represents and warrants that the waivers and releases herein have been negotiated and
agreed upon in light of that realization and that the Developer nevertheless hereby intends to
release, discharge and acquit the City Released Parties from any such unknown Claims.
Accordingly, the Developer, on behalf of itself and anyone claiming by, through or under the
Developer, hereby assumes the above-mentioned risks and hereby expressly waives any right the
Developer and anyone claiming by, through or under the Developer, may have under Section
1542 of the California Civil Code, which reads as follows:
"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."
Developer's Initials:
City's Release of the Developer. Effective as of the Closing Date for each Phase
and solely with respect to the applicable Phase, the City, on behalf of itself and anyone claiming
by, through or under the City (including, without limitation, any successor owner of any portion
of NAS Alameda Property acquired by the City, whether prior to or after the applicable Phase
Closing Date), hereby waives its right to recover from and fully and irrevocably releases the
Developer, its partners and their respective partners, members, shareholders, managers, directors,
officers, employees, attorneys, agents, and successors and assigns (the "Developer Released
Parties") from any and all Claims that the City may have or hereafter acquire against any of the
Developer Released Parties arising from or related to the Incidental Migration of Hazardous
Materials that existed as of the applicable Phase Closing Date from the applicable Phase to any
portion of the NAS Alameda Property acquired by the City, whether such Incidental Migration
occurs prior to or after the applicable Phase Closing Date.
Notwithstanding the foregoing provisions of this Section or anything to the contrary herein,
nothing herein shall negate, limit, release, or discharge the Developer Released Parties in any
way from, or be deemed a waiver of any Claims by the City (or anyone claiming by through or
under the City, including, but not limited to, any successor owner of the applicable Phase) with
respect to: (i) any fraud or intentional concealment or willful misconduct committed by any of
the Developer Released Parties, (ii) any premises liability or bodily injury claims accruing after
the applicable Phase Closing Date to the extent such claims are not based on the acts of the City,
its elected and appointed officials, board members, commissioners, officers, employees,
attorneys, agents, volunteers and their successors and assigns; (iii) any violation of law by any of
the Developer Released Parties after the applicable Phase Closing Date; (iv) a breach of the
Developer's obligations under this Agreement or any other agreement between the City and the
Developer, a Collaborating Partner, or MidPen or their assignees; (v) the release (including
negligent exacerbation but excluding Incidental Migration) of Hazardous Materials by any of the
Developer Released Parties at, on, under or otherwise affecting the applicable Phase or any other
portion of the NAS Alameda Property acquired by the City, which release first occurs after the
applicable Phase Closing Date; or (vi) any claim that is actually accepted as an insured claim
under the Pollution Liability Insurance Policy maintained by the Developer.
Scope of Release. The release set forth in subsection 4.6(h) includes claims of
which the City is presently unaware or which the City does not presently suspect to exist which,
if known by the City, would materially affect the City's release of the Developer Released
Parties. The City specifically waives the provision of any statute or principle of law that
provides otherwise. In this connection and to the extent permitted by law, the City agrees,
represents and warrants that the City realizes and acknowledges that factual matters now
unknown to the City may have given or may hereafter give rise to Claims which are presently
unknown, unanticipated and unsuspected, and the City further agrees, represents and warrants
that the waivers and releases herein have been negotiated and agreed upon in light of that
realization and that the City nevertheless hereby intends to release, discharge and acquit the
Developer Released Parties from any such unknown Claims. Accordingly, the City, on behalf of
itself and anyone claiming by, through or under the City, hereby assumes the above-mentioned
risks and hereby expressly waives any right the City and anyone claiming by, through or under
the City, may have under Section 1542 of the California Civil Code, which reads as follows:
"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."
City's Initials:
Effective as of the Closing Date for each Phase and solely with respect to the
portion of the Property included in such Phase, the City specifically acknowledges and agrees
that, as between the Developer and the City, in the event of any Incidental Migration of
Hazardous Materials that existed as of the applicable Closing Date from the applicable Phase to
any portion of the NAS Alameda Property acquired by the City, whether such Incidental
Migration occurs prior to or after the applicable Closing Date, the Developer shall not be
responsible for any required remediation of any such Hazardous Materials at any portion of the
NAS Alameda Property acquired by the City.
Effective as of the Closing Date for each Phase and solely with respect to the
portion of the Property included in such Phase, the Developer specifically acknowledges and
agrees, that as between the Developer and the City, in the event of any Incidental Migration of
Hazardous Materials that existed as of the applicable Closing Date from property owned by the
City to the applicable Phase, which such Incidental Migration occurs prior to or after the
applicable Closing Date, the City shall not be responsible for any required remediation of any
such Hazardous Materials at any portion of the applicable Phase.
The City hereby agrees that nothing in this Section 4.6 shall release the City from
its obligations under this Agreement.
Costs of Escrow and Closing.
All expenses that are required to be prorated including but not limited to non -
delinquent ad valorem taxes, if any, for each Phase of the Property being transferred and the lien
of any bond or assessment related to each Phase of the Property being transferred shall be
prorated as of the applicable Closing Date.
Basis of Proration. If taxes and assessments due and payable have not
been paid before Closing, the City shall be charged at Closing an amount equal to that portion of
such taxes and assessments which relates to the period before Closing and the Developer
Affiliate shall pay the taxes and assessments prior to their becoming delinquent. Any such
apportionment made with respect to a tax year for which the tax rate or assessed valuation, or
both, have not yet been fixed shall be based upon the tax rate and/or assessed valuation fixed as
of the most recent date. The Developer Affiliate shall pay all supplemental taxes resulting from
the change in ownership and reassessment occurring as of the applicable Closing Date.
Initial Use of Estimates; True Up Based on Final Amounts. Any expense
amount which cannot be ascertained with certainty as of the applicable Closing shall be prorated
on the basis of the Parties' reasonable estimates of such amount. Once the previously estimated
amounts have been finalized, the Parties shall prorate these new amounts pursuant to this
Agreement and each party shall pay any amount due to a third party within ten (10) business
days after receipt of the final amount. If either Party has overpaid an amount based on the prior
estimate, the other Party shall reimburse the overpaying party within ten (10) business days after
receipt of the final amount.
The provisions of this Section shall survive the applicable Closing and
shall not merge with the applicable Quitclaim Deed.
Transaction and Closing; Costs. The Developer Affiliate shall pay the premium
for an ALTA Owner's Policy (Form 1970) insuring the Developer Affiliate's interest in the
Property subject only to the Permitted Exceptions and such other exceptions as may be caused by
Developer Affiliate (such as the lien of a Security Financing Interest) (collectively the "Title
Policies") (including title endorsements) in excess thereof. All other costs of escrow (including,
without limitation, any Escrow Holder's fee, costs of title company document preparation,
recording fees, and transfer tax) shall be paid by the Developer Affiliate. These costs borne by
the Developer Affiliate shall be in addition to the Land Payment.
Closing Procedures. When all of the funds, documents and other items required
by Section 4.4 for the applicable Phase Closing have been timely deposited into Escrow, Escrow
Holder shall Close Escrow as follows:
Record the following documents in the Official Records in the following
order (collectively, the "Recording Documents"):
the Quitclaim Deed;
the City Regulatory Agreement;
The Project CC&Rs;
the Notice of City Release of Environmental Claims; and
the Notice of Developer Release of Environmental Claims.
Issue the Title Policy to the Developer Affiliate;
Pro rate taxes, assessments and other charges pursuant to Section 4.7 and
pay the applicable charges from the applicable funds deposited by the City or the Developer
Affiliate;
Pay the Closing Costs from the applicable funds deposited by the
Developer Affiliate;
Deliver the following to the City: conformed copies of the Recording
Documents, an original of the General Assignment, and the Vertical Improvement Completion
Assurances, and
Deliver the following items to the Developer: conformed copies of the
Recording Documents, an original of the General Assignment, the original Bill of Sale, the
original Title Policy, and the Off -Site Rights of Entry.
In addition to the above, the Escrow Holder shall record the Release Agreement and the
Encumbrance Releases in accordance with escrow instructions signed by City and the Developer
Affiliate and deposited with the Escrow Holder prior to the Closing.
If Escrow Holder is unable to simultaneously perform all of the instructions set forth
above, Escrow Holder shall notify the Parties and retain all funds and documents pending receipt
of further instructions jointly issued by Parties.
Real Estate Commissions. Each Party represents and warrants that it has not entered into
any agreement, and has no obligation, to pay any real estate commission or third -party finder's
fees in connection with the transaction contemplated by this Agreement. If a real estate
commission is claimed through either Party in connection with the transaction contemplated by
this Agreement, then the Party through whom the commission is claimed shall indemnify, defend
and hold the other Party harmless from any liability related to such commission. The Parties'
respective obligations to indemnify defend and hold harmless under this Section 4.8 shall survive
termination of this Agreement, and shall be interpreted broadly so as to apply to any legal or
administrative proceeding, arbitration, or enforcement action.
Survival. The terms and conditions in Article 4 shall expressly survive the Closing, shall
not merge with the provisions of the Quitclaim Deed or any other closing documents and shall be
deemed to be incorporated by reference into the Quitclaim Deed. The Developer has fully
reviewed the disclaimers and waivers set forth in this Agreement with the Developer's counsel
and understands the significance and effect thereof.
CONSTRUCTION OF THE PROTECT
Basic Obligations. From and after the Closing on each Phase, the applicable Developer
Affiliate shall cause construction of the Vertical Improvements in each Phase in accordance with
the terms of this Agreement, the approved Development Plan, the Planning Documents, the
TDM Plan and the TDM Compliance Strategy, the Main Street Neighborhood Plan, the Project
Approvals, and any additional applicable approvals, including compliance with the MMR
Program related to or required in connection with such construction. The applicable Developer
Affiliate shall cause commencement and completion of construction of the Vertical
Improvements within each Phase within the times set forth in the Milestone Schedule and
consistent with the terms of the approved Phasing Plan. The applicable Developer Affiliate shall
be responsible for all costs associated with the Vertical Improvements for each Phase.
Construction Pursuant to Approved Construction Documents. The applicable Developer
Affiliate shall cause construction of the Vertical Improvements in each Phase in accordance with
the applicable Approved Construction Documents (or modifications thereto processed and
approved by the City in accordance with applicable City ordinances, rules and regulations), and
the terms and conditions of all City and other governmental approvals. Nothing in this section
shall preclude or modify the Developer Affiliate's obligation to obtain any required City approval
of changes in the Approved Construction Documents in accordance with applicable City
ordinances, rules and regulations.
Construction Permits and Approvals.
Supplemental Approvals. As a condition precedent to the conveyance of any
Phase of the Property, MidPen or the applicable Developer Affiliate shall apply to the City and
other applicable governmental entities for, and shall diligently pursue procurement of the
Supplemental Approvals for the applicable Phase. MidPen or the applicable Developer Affiliate
shall apply for the first Supplemental Approval for each Phase no later than the date set forth in
the Milestone Schedule and shall continue to submit applications for additional Supplemental
Approvals as necessary to ensure receipt of all of the Supplemental Approvals for each Phase by
the date set forth in the Milestone Schedule. The City and MidPen shall coordinate the
preparation and submission of any Tentative Maps or Final Maps for the Property with the
developer of the adjacent property, to ensure that the appropriate level of mapping is in place
before the installation of the Backbone Infrastructure. The City shall cooperate with MidPen on
obtaining any approvals from other governmental entities and public utilities, provided the City
shall not be obligated to incur any costs associated with obtaining such permits and approvals.
The City, in its capacity as the property owner and not in its regulatory capacity, (i) will sign any
application for a Tentative or Final Map if such application is filed while the City owns any
property subject to the Map; and (ii) sign any Tentative Map or Final Map as the owner of the
property subject to the Map once such Map is approved in accordance with the City's standard
process for approval of Subdivision Maps.
Evidence of Approvals. Within the time set forth in the Milestone Schedule,
MidPen or the applicable Developer Affiliate shall submit to the City evidence that all
Supplemental Approvals necessary for commencement of construction of Vertical Improvements
in the Phase in accordance with this Agreement have been obtained.
Only upon delivery of such evidence in form reasonably satisfactory to the City
shall the conditions of this Section 5.3 be deemed met. If such evidence is not delivered within
the time specified in the Milestone Schedule, this Agreement may be terminated pursuant to
Article 14.2 or 14.4, as applicable.
Vertical Construction Contract.
As a condition precedent to Closing and within the time set forth in the Milestone
Schedule, the Developer Affiliate for the applicable Phase shall submit to the City the proposed
construction contract with the General Contractor for the construction of such Vertical
Improvements (the "Vertical Improvement Construction Contracts"). Each proposed Vertical
Improvement Construction Contract shall:
Specify a guaranteed maximum price or be another type of construction
contract in which the pricing mechanism provides reasonable assurance that the total
construction cost under the Vertical Improvement Construction Contract will be an amount not
exceeding the construction cost set forth in the approved Sub -Phase Update to the Financing Plan
including contingency amounts;
Meeting the requirements of Section 5.8; and
Otherwise be in a form consistent with the terms of this Agreement with
respect to construction of the applicable Vertical Improvements and shall deliver written
verification that the executed Vertical Improvement Construction Contract complies with this
Agreement.
The City Manager shall either approve or disapprove the submitted Vertical
Improvement Construction Contract within fifteen (15) Business Days from the date the City
receives the Vertical Improvement Construction Contract. If the proposed Vertical Improvement
Construction Contract is not approved by the City Manager, then the City Manager shall notify
the applicable Developer Affiliate in writing of the reasons for disapproval and the required
revisions to the previously submitted Vertical Improvement Construction Contract. The
applicable Developer Affiliate shall thereafter submit a revised Vertical Improvement
Construction Contract within ten (10) Business Days of the notification of disapproval. The City
Manager shall either approve or disapprove the submitted revised Vertical Improvement
Construction Contract within ten (10) days of the date such revised Vertical Improvement
Construction Contract is received by the City. The City Manager shall approve an initial or
revised Vertical Improvement Construction Contract if it meets the standards set forth in
subsection (a) of this Section 5.4 and is with a licensed and experienced General Contractor.
If the Vertical Improvement Construction Contract is not approved by the time set
forth in the Milestone Schedule, this Agreement may be terminated pursuant to Article 14.2 or
14.4, as applicable.
Following the City Manager's approval of a Vertical Improvement Construction
Contract pursuant to this Section 5.4, the applicable Developer Affiliate may, without City
approval, make changes to such Construction Contract that are consistent with, and do not cause
the Construction Contract to be out of compliance with, this Agreement; provided, however, that
the applicable Developer Affiliate shall first provide the City with notice, clearly indicating the
nature of the proposed changes, not less than five (5) business days before the applicable
Developer Affiliate enters into an instrument effectuating such changes. The applicable
Developer Affiliate shall not make any changes to a Vertical Improvement Construction Contract
previously approved by the City Manager pursuant to this Section 5.4 that would cause the
Construction Contract to be out of material compliance with this Agreement without the prior
written consent of the City.
Construction Assurances To City.
As a condition precedent to the Closing for each Phase and within the time set
forth in the Milestone Schedule, the applicable Developer Affiliate shall provide for the benefit
of the City assurances of completion of construction of such Phase Vertical Improvements,
including but not limited to payment bonds, performance bonds, or other construction related
surety bonds or completion guaranties (the "Vertical Improvement Completion Assurances")
(i) in an amount, with the terms and conditions, and from the providers comparable to those
contained in any Completion Assurances that the Developer Affiliate provides to its equity
investors or debt providers of financing for the Vertical Improvements under the approved Phase
Update to the Financing Plan, or (ii) if no such completion assurances are provided pursuant to
clause (i), as otherwise approved by the City.
The City Manager shall either approve or disapprove the submitted proposed
Vertical Improvement Completion Assurances, if any, within fifteen (15) Business Days from
the date the City receives the Vertical Improvement Completion Assurances. The City shall not
withhold, delay or condition its approval of a completion guaranty issued by affiliates of the
Developer Affiliate that have, in the aggregate, a demonstrable net worth equal to twenty five
percent (25%) of the hard construction costs of the applicable Vertical Improvements (as
demonstrated by the applicable Phase Update to the Financing Plan). If the proposed Vertical
Improvement Completion Assurances are not approved by the City Manager, then the City
Manager shall notify the Developer Affiliate in writing of the reasons for disapproval and the
required revisions to the previously submitted Vertical Improvement Completion Assurances.
The Developer Affiliate shall thereafter submit revised proposed Vertical Improvement
Completion Assurances within fifteen (15) Business Days of the notification of disapproval. The
City Manager shall either approve or disapprove the submitted revised Vertical Improvement
Completion Assurances within fifteen (15) Business Days of the date such revised Vertical
Improvement Completion Assurance are received by the City. The City Manager shall approve
the initial or revised Vertical Improvement Completion Assurances if they meet the standards set
forth in this Section 5.5.
If the Vertical Improvement Completion Assurances are not approved by the City
Manager by the time set forth in the Milestone Schedule, this Agreement may be terminated
pursuant to Section 14.2 or 14.4, as applicable. Only upon City Manager's approval of the
Completion Assurances shall this condition be deemed met.
Subdivision Map. As a condition precedent to the conveyance of any Phase of the
Property a Final Map for the applicable Phase to be conveyed must be recorded. MidPen and the
City will coordinate the applications for any Tentative Map and Final Map with the developer of
the adjacent property as part of the installation of the Backbone Infrastructure. MidPen agrees to
cooperate with the adjacent property developers to expeditiously complete the mapping process.
Developer Affiliate's Responsibility for All Costs of the Applicable Phase of the Proiect.
As between the City and each Developer Affiliate, each Developer Affiliate shall be solely
responsible for all pre -development costs and expenses and all development costs and expenses
related to the development of the Vertical Improvements for the applicable Phase of the Project.
In the event the costs of developing the Vertical Improvements exceed the Developer Affiliate's
estimates of such costs, the applicable Developer Affiliate shall nonetheless be responsible to
complete, at its expense the development of the Vertical Improvements in accordance with and
subject to the terms of this Agreement.
Local Workforce Development.
The Parties hereby agree (i) to a goal that residents of the City of Alameda, and
Alameda County ("Local Residents"), will perform up to twenty-five percent (25%) of all
construction job hours worked on the Project, if such workers are available, capable and willing
to work (the "Local Hire Goal") and (ii) that participants in the Alameda Point Collaborative
Program will be referred to the apprentice programs of the union(s) and establish a goal that such
participants will perform fifteen percent (15%) of all apprentice construction job hours worked
on the Project as such referrals are available, capable/qualified and willing to work (the
"Apprentice Goal"). All participants that will be referred to the contractors to meet this
requirement will have gone through a pre -apprenticeship program that meets the Multi -Craft
Core Curriculum as established by the National Building Trades. Each Developer Affiliate shall
use good faith efforts to achieve the Local Hire Goal and Apprentice Goal. A Developer
Affiliate shall be conclusively deemed to have satisfied its obligations under this Section 5.8 if it
either:
Demonstrates to the City's reasonable satisfaction that Local Residents
have actually worked twenty five percent (25%) of the construction job hours on the Project and
that Alameda Point Collaborative Program referrals have actually worked fifteen percent (15%)
of all apprentice construction job hours worked on the Project (If the Local Resident is also a
High School graduate of the Alameda Unified School District, hours worked by such Local
Resident will count double); or
Demonstrates to the City's reasonable satisfaction that the Developer
Affiliate has:
Included a requirement in each Construction Contract requiring the
General Contractor and all subcontractors to use good faith efforts to achieve the Local Hire
Goal and Apprentice Goal, which good faith efforts shall include, (1) when permitted,
implementing union hiring hall procedures that request residents from the City of Alameda, and
if those are not available, then request residents from Alameda County on a priority basis and (2)
requesting qualified referrals from the Alameda Point Collaborative Program; and
Included a requirement in each Construction Contract requiring the
General Contractor and all subcontractors to submit quarterly reports to the City which include,
(1) estimates of the total Project construction job hours and total apprentice hours to be
performed by the contractor, (2) total Project construction job hours actually worked by Local
Residents, (3) total Project apprentice hours worked by referrals from the Alameda Point
Collaborative Program, (4) copies of their certified payroll reporting forms for the reporting
period and (5) a summary of the contractors good faith efforts to meet the Local Hire Goal and
Apprentice Goal.
Each Developer Affiliate's compliance with this Section 5.8 shall be separately
calculated/assessed.
Project Stabilization Agreement. Each Developer Affiliates shall comply with the City's
Project Stabilization Agreement or negotiate in good faith a Project Stabilization Agreement with
the Building Trades for each Phase of the Project.
Compliance with Applicable Law. Each Developer Affiliate shall cause all work
performed in connection with construction of the Project to be performed in compliance with: (1)
all applicable laws, ordinances, rules and regulations of federal, state, county or municipal
governments or agencies; and (2) all rules and regulations of any fire marshal, health officer,
building inspector, or other officer of every governmental agency now having or hereafter
acquiring jurisdiction. The work shall proceed only after procurement of each permit, license, or
other authorization that may be required by any governmental agency having jurisdiction, and
the applicable Developer Affiliate shall be responsible for the procurement and maintenance
thereof, as may be required of the Developer Affiliate and all entities engaged in work on the
Property.
Entry by the City. Each Developer Affiliate shall permit the City, through its officers,
agents, or employees, to enter the Property at all reasonable times upon reasonable notice to
inspect the work of construction of the Project to determine that such work is in conformity with
the Approved Construction Documents or to inspect the Property for compliance with this
Agreement. The City is under no obligation to: (a) supervise construction, (b) inspect the
Property, or (c) inform the Developer of information obtained by the City during any inspection,
except that the City shall inform the Developer of any information it obtains or discovers during
inspection that could reasonably foreseeably affect rights or obligations of a Party under this
Agreement. The Developer Affiliate shall not rely upon the City for any supervision or
inspection. The rights granted to the City pursuant to this section are in addition to any rights of
entry and inspection the City may have in exercising its municipal regulatory authority.
Progress Reports. Until such time as the final Phase of the Project is entitled to issuance
of an Estoppel Certificate of Completion, MidPen shall provide the City with quarterly progress
reports, or more frequently as reasonably requested by the City, regarding the status of the
construction of the Project improvements.
Necessary Safeguards. Each Developer Affiliate shall or shall cause its Contractors to
erect and properly maintain at all times, all reasonable and necessary safeguards for the
protection of workers and the public.
AFFORDABLE HOUSING REQUIREMENTS
Affordable Housing Obligations. The redevelopment of the Property is subject to the
requirement under the Renewed Hope Settlement Agreement, the Inclusionary Housing
Ordinance and the Density Bonus Regulations as further set forth below:
(a) Renewed Hope Settlement Agreement. Under the Renewed Hope
Settlement Agreement twenty-five percent (25%) of all newly constructed housing units at
Alameda Point must be made permanently Affordable as follows: (1) ten percent (10%) of all
Residential Units shall be made permanently Affordable to Very Low Income Households and
Low Income Household (households with incomes at or below 80% of median income); and (2)
the remaining fifteen (15%) of all Residential Units shall be made permanently Affordable to
Very Low Income Households, Low Income Households and Moderate Income Households
under the criteria set forth in Health and Safety Code Section 33413(b)(2). Developer has
provided to the City a letter from Renewed Hope stating that the New Residential Units meet the
requirements of the Renewed Hope Settlement Agreement with respect to the Main Street
Neighborhood Plan.
(b) Inclusionary Housing Ordinance. Under AMC 30-16-4 at least fifteen
percent (15%) of the total units in the Project must be "inclusionary units" restricted for
occupancy by Very Low Income Households, Low Income Households and Moderate
Households Income Households. Specifically, the Inclusionary Ordinance requires that: (1) four
percent (4%) of the units be restricted to occupancy by Very Low Income Households; (2) four
percent (4%) of the units must be restricted to occupancy by Low Income Households; and (3)
seven percent (7%) of the units must be restricted to occupancy by Moderate Income
Households. For purposes of the Inclusionary Housing Ordinance, the project is defined as the
entirety of the Main Street Neighborhood Plan and the Affordable Housing Units will satisfy the
Inclusionary Housing obligation of the market rate units developed within the Main Street
Neighborhood Plan Area. The Project will satisfy the Inclusionary Housing Ordinance
requirements for units restricted to occupancy by Very Low Income Households and Low
Income Households but the Inclusionary Housing Ordinance requirements for units restricted to
Moderate Income Households will be satisfied by the developers of the adjacent properties to be
developed with market rate uses.
(c) Density Bonus Regulations. The City and the Developer expect that the
Market Rate Developer will complete and submit to the City an application for a development
plan for the South of West Midway Area that includes a Density Bonus Application under the
City's Density Bonus Regulations, which development plan will supersede and replace the
RESHAP Development Plan. In consideration for the waiver, if granted, Developer is expected
to agree to make at least ten percent (10%) of the total units in the Project affordable to Moderate
Income Households.
Project Affordable Housing Requirements.
The Project will include a mix of transitional housing and permanent rental
housing units restricted to households with gross incomes not to exceed between 30% and 60%
of the Area Median Income (AMI).
Eligibility for the Alameda Point Collaborative and Building Futures With
Women and Children units at the Project will be restricted to households who initially meet the
Department of Housing and Urban Development's definition of Homelessness as defined in the
Homeless Emergency Assistance and Rapid Transition to Housing Act. Eligibility for Operation
Dignity units will be restricted to formerly homeless and/or currently homeless veterans, and
users of other homeless or transitional housing programs currently administered at the Dignity
Commons housing site.
To ensure that all Affordable Housing Units constructed as part of the Project are
permanently available to and occupied by income eligible households at an Affordable Housing
Cost in compliance with this Agreement, the applicable Developer Affiliate hereby agrees to
execute and record in the public records with the Alameda County Recorder (the "Official
Records"): (1) a City Regulatory Agreement in substantially the form attached as Exhibit K
restricting Very Low Income Homes and the Low Income Homes at the time of conveyance of
any Phase of the Transfer Property to the applicable Developer Affiliate. The City Regulatory
Agreement shall be recorded against title to the applicable Phase subject only to such liens,
encumbrances and other exceptions to title approved in writing and in advance by the City. The
parties agree to meet and confer if the priority lien position of the City Regulatory Agreement
interferes with the Developer's ability to obtain commercially reasonable debt financing. The
applicable Developer Affiliate must demonstrate to the City's reasonable satisfaction that
subordination of the City Regulatory Agreement is necessary to secure adequate construction
and/or permanent financing to ensure the viability of the Phase. To satisfy this requirement, the
applicable Developer Affiliate must provide to the City, in addition to any other information
reasonably required by the City, evidence demonstrating that the proposed amount of the senior
debt is necessary to provide adequate construction and/or permanent financing to ensure the
viability of the Phase and adequate financing for the Phase would not be available without the
proposed subordination.
This City Regulatory Agreement required under this Section 6.2 shall satisfy the
requirement for: (1) an "affordable housing agreement" ensuring the continuing affordability of
housing pursuant to the Density Bonus Regulations as specified in AMC 30-17; and (2) an
"affordable housing plan" ensuring the continuing affordability of housing constructed pursuant
to the Inclusionary Housing Ordinance as specified AMC 30-16-10.
Consistency with Palmer and Non -Applicability of Costa Hawkins.
The Developer has or will submit an application for density bonus pursuant to the
City's Density Bonus Regulations.
The Parties understand and agree that the Costa -Hawkins Rental Housing Act
(California Civil Code sections 1954.50 et seq.; the "Costa -Hawkins Act") does not and in no
way shall limit or otherwise affect the restriction of rental charges for the Affordable Housing
Units developed pursuant to this Agreement and subject to the City Regulatory Agreement. This
Agreement falls within an express exception to the Costa -Hawkins Act because the Agreement is
a contract with a public entity in consideration for a direct financial contribution and other forms
of assistance specified in Chapter 4.3 (commencing with Section 65915) of Division 1 of Title 7
of the California Government Code. Accordingly, Developer, on behalf of itself and all of its
successors and assigns, including all affiliates, successor and assigns, agrees not to challenge,
and expressly waives, now and forever, any and all rights to challenge, Developer's obligations
set forth in this Agreement related to Affordable Housing Units, under the Costa -Hawkins Act,
as the same may be amended or supplanted from time to time. Developer shall include the
following language, in substantially the following form, in all agreements it enters into with
Affiliates, successor or assigns transferring any obligations under this Agreement or any portion
of the Property:
"The Disposition and Development Agreement by and between the City of Alameda and
Developer, dated and recorded , at
implements City of Alameda policies and includes regulatory concessions, incentives and
significant public investment in the Project. These public contributions result in
identifiable, financially sufficient and actual cost reductions for the benefit of Developer
and any successors and assigns, as contemplated by California Government Code
Section 65915. In light of the City's authority under Government Code Section 53395.3
and in consideration of the direct financial contribution and other forms of public
assistance described above, the Parties understand and agree that the Costa -Hawkins Act
does not and shall not apply to the Affordable Housing Units as defined in the
Disposition and Development Agreement developed at the Property."
The Parties understand and agree that the City would not be willing to enter into this Agreement,
without the agreement and waivers as set forth in this Section 6.3.
ADDITIONAL DEVELOPER OBLIGATIONS
Use and Occupancy. Each Developer Affiliate shall use, operate, and maintain, the
portion of the Property transferred to such Developer Affiliate and the portion of the Project
located on the Transfer Property in accordance with all requirements and standards of this
Agreement, the approved Development Plan, the Planning Documents, the TDM Plan and the
TDM Compliance Strategy and the Main Street Neighborhood Plan, the Supplemental
Approvals, and City Regulatory Agreement, and all applicable federal, state and local laws and
regulations.
Project CC&R's. Prior to the Phase 1 Closing, the Developer shall obtain the City's
approval of the Project CC&R's which (a) require each owner of any portion of the Property to
maintain its applicable private improvements adjacent to and visible from the public right of way
(building facades, signs, sound walls, fences, parking lots drive aisles and open space areas) as
well as all common facilities including but not limited to streets and utilities not accepted for
maintenance by the City in a first-class condition consistent with other mixed-use residential and
commercial centers in the Oakland metropolitan area; (b) require that each owner of any portion
of the Property comply with the TDM Compliance Strategy; and (c) provide the City with the
right to (i) enforce such provisions pursuant to the CC&R's and (ii) after applicable notice and
right to cure, the right to perform such maintenance and receive a reimbursement of third party
expenses. Such maintenance shall include, but not be limited to cleaning, painting, removal of
graffiti, repair of vandalism, grounds care, prevention of the accumulation of abandoned
property, inoperable vehicles, and waste material, and prevention of unenclosed storage areas.
Prevailing Wages and Related Requirements. This Agreement has been prepared with the
intention that the construction of the Project shall be subject to the requirement of payment of
prevailing wages or related obligations set forth in Labor Code Section 1720 et seq., and Section
2-67 of the Alameda Municipal Code.
Notwithstanding the foregoing, nothing in this Agreement constitutes a
representation or warranty by the City regarding the applicability of the provision of Labor Code
Section 1720 et seq., and/or Section 2-67 of the Alameda Municipal Code and the Developer
Affiliates shall comply with any applicable laws, rules and regulations related to construction
wages and other construction matters, if and to the extent applicable to any portion of the
development of the Project.
Each Developer Affiliate, with respect to its Phase only, shall indemnify, defend
(with counsel reasonably acceptable to the City), and hold harmless the Indemnified Parties
against any claim for damages, compensation, fines, penalties or other amounts arising out of the
failure or alleged failure of any person or entity (including the Developer, the Developer
Affiliate and the Contractors) to pay prevailing wages as determined pursuant to Labor Code
Sections 1720 et sea., to employ apprentices pursuant to Labor Code Sections 1777.5 et sea., or
to comply with the other applicable provisions of Labor Code Sections 1720 et sea. and 1777.5
et sea., to meet the conditions of Section 1771.4 of the Labor Code, and the implementing
regulations of the DIR in connection with the construction of the Project and to comply with any
other requirements related to public contracting. The Developer Affiliate's obligation to
indemnify, defend and hold harmless under this Section 8.3(b) shall survive termination of this
Agreement, and shall be interpreted broadly so as to apply to any legal or administrative
proceeding, arbitration, or enforcement action.
Expansion, Reconstruction or Demolition. No Developer Affiliates shall cause or permit
any expansion, reconstruction, or demolition of its Phase of the Project without the prior written
approval of the City in accordance with all applicable ordinances, rules and regulations.
Damage or Destruction. The Developer Affiliates shall promptly notify the City of any
Casualty with respect to its Phase occurring during the Term, and shall diligently seek to procure
all insurance proceeds that may be available to compensate for such Casualty. Subject to the
rights of Senior Permitted Mortgagees (as defined below), to the extent economically feasible as
a result of the availability of insurance proceeds plus the applicable Developer Affiliate's
deductible or self-insured retention (together with any additional funds the Developer Affiliate
elects to provide for such purpose), the applicable Developer Affiliate shall promptly commence
and diligently pursue restoration or replacement of the portion of the Property and/or the Project
that was damaged by such Casualty during the Term. Subject to the rights of Senior Permitted
Mortgagees (as defined below) to the extent economically feasible as a result of .the availability
of insurance proceeds plus the Developer Affiliate's deductible or self-insured retention (together
with any additional funds the Developer Affiliate elects to provide for such purpose), the
restored or replaced property shall be at least equal in value, quality and use to the value, quality,
and use of such damaged property immediately before the Casualty.
Mitigation Monitoringand n� d Reporting Program. Each Developer Affiliate shall comply
with the MMR Program adopted by the City, attached hereto as Exhibit E, as that the MMR
Program may be amended from time to time, and expressly incorporated with this Agreement by
this reference.
Developer Affiliate's Obligations Regarding Hazardous Materials. Each Developer
Affiliate shall comply with its obligations regarding the management and disposal of Hazardous
Materials as set forth in more detail in Article 11 of this Agreement.
Developer Affiliate's Indemnification Obligations. Each Developer Affiliate shall
comply with its indemnity obligations as set forth in more detail in Article 12 of this Agreement.
Developer's Insurance Obligations. The Developer and each Developer Affiliate shall
comply with its insurance obligations as set forth in more detail in Article 13 of this Agreement.
Taxes. From and after each Phase Closing, the Developer Affiliate shall pay when due
all real property taxes and assessments assessed and levied on the portions of the Property
conveyed to the Developer Affiliate and the Project that are attributable to the period following
the Closing and shall remove any levy or attachment made on such portion of the Property.
Nothing contained herein shall prevent the Developer Affiliate from applying for and obtaining
any property tax exemption available for the Affordable Housing Units.
Non -Discrimination. Each Developer, as to itself only, covenants that such Developer
shall not discriminate against or segregate any person or group of persons on account of race,
color, religion, creed, sex, sexual orientation, marital status, ancestry or national origin in the
construction, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property
and the Project, nor shall such Developer or any person claiming under or through such
Developer establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, vendees or employees in the Property and the Project. The foregoing
covenant shall run with the land and shall remain in effect in perpetuity.
Applicability. Each Developer or Developer Affiliate, as applicable, shall comply with
the provisions of this Article 7 for the applicable time period specified in the various Sections of
this Article 7; or if no specified time period is set forth in a particular section, throughout the
Term of this Agreement.
TDM Compliance Strategy. Each Developer Affiliate, its assignees and successor shall
at all times comply with the TDM Compliance Strategy approved by the City, attached hereto as
Exhibit J, as the TDM Compliance Strategy may be amended from time to time in compliance
with the Alameda Point TDM Plan, including meeting the trip reduction goals in the TDM Plan.
The Developer Affiliate's obligation to comply with the TDM Compliance Strategy shall
include, but not be limited to, participating in the Transportation Management Association. The
Developer agrees to cooperate with the City in forming and shall vote in favor of, a special tax
district or financing district for any portion of the Property transferred to such Developer
established for the purposes of complying with the TDM Plan and as part of the TDM
Compliance Strategy as long as the annual tax lien for any such special tax district or financing
district does not exceed at the time of formation twenty cents ($.20) per square foot of
commercial space annually and ninety dollars ($90) per residential units annually. The
Developer shall assure that if any portion of this Agreement is assigned to a Developer Affiliate
and any portion of the Property is conveyed to a Developer Affiliate, the assignment documents
will require that the Developer Affiliate vote in favor of the special tax district or financing
district.
Release of Existing Leases and Relocation of Residents. Each of the Collaborating
Partners shall be obligated to release its Existing Lease and relocate any residents residing on the
premises covered by such Existing Lease within the time frame set forth in the Milestone
Schedule of Performance. Within the time set forth in the Milestone Schedule each of the
Collaborating Partners shall provide the City with evidence that the County of Alameda has
consented to the release of the Existing Leases. Following approval by the City of the Phasing
Plan, and within the time set forth in the Milestone Schedule, each Collaborating Partner shall
execute and deposit with Escrow a Release Agreement substantially in the form of Exhibit Q
attached hereto, Encumbrance Releases in a form acceptable to the City from all holders of
encumbrances on the property subject to the Existing Lease and escrow instructions signed by
the City and the Collaborating Partner setting forth the instructions to Escrow Holder for
recordation of the Release Agreement and the Encumbrance Releases, which date shall be
consistent with the Milestone Schedule of Performance and the Phasing Plan.
Each of the Collaborating Partners shall submit or cause the Developer Affiliate in which the
Collaborating Partner is a member to submit to the City a plan for relocation of the occupants of
the property subject to that Collaborating Partner's Existing Lease that includes (i) proposed
timing for the relocation of the occupants of the property; (ii) proposed temporary replacement
housing for the occupants of the property; (iii) a budget for the costs of the temporary relocation
as well as proposed financing for the temporary relocation; and (iv) a community outreach plan
for the affected tenants. The City shall approve or disapprove the plan for relocation within thirty
(30) days of receipt of the plan. In the event the City disapproves the relocation plan, the
disapproval shall include specific reasons for the disapproval. If the City disapproves the
relocation plan, the Collaborating Partner or Developer Affiliate, as applicable, shall submit a
revised plan for relocation within thirty (30) days of receipt of the City's disapproval addressing
the City's reasons for disapproval. The City shall have fifteen (15) days to review, approve or
disapprove the plan for relocation. The approval by the City of a plan for relocation of the
occupants of the property covered by the Existing Lease of a Collaborating Partner is a condition
precedent to the conveyance of any portion of the Property to a Developer Affiliate in which the
Collaborating Partner is a member or partner.
The City agrees to cooperate with the Collaborating Partner holding each Existing Lease to seek
temporary relocation housing for any occupants of the Existing Structures that are required to the
relocated, but each Collaborating Partner shall be solely responsible for the relocation of any
occupants of the Existing Structures including the payment of any relocation benefits, at its sole
costs and City shall have no responsibility for the payment of any relocation benefits or the
provision of relocation housing to the occupants of the Existing Structures. A Collaborating
Partner may assign its obligations related to relocation of the occupants of the Existing Structures
to a Developer Affiliate in accordance with the provisions of this Agreement related to
assignments. Should the Collaborating Partner holding an Existing Lease need to relocate its
occupants temporarily prior to the completion of the applicable Phase that will provide
permanent relocation, the Collaborating Partner shall release its Existing Lease and the City and
the Collaborating Partner or Developer Affiliate, as applicable, shall enter into a lease or license
agreement for the temporary relocation site that terminates sixty (60) days after the certificate of
occupancy is issued for the Applicable Developer Affiliate's Project. Each of the Collaborating
Partners hereby agrees to indemnify, defend and hold harmless the City and its officers, its
elected and appointed officials, board members, commissioners, employees, attorneys, agents
and successor and assigns against all third party suits, actions, claims, causes of action, costs,
demands, judgments and liens arising out of such Collaborating Partner's performance or non-
performance under this Agreement, including but not limited to, any relocation obligations to the
tenants or occupants of the Existing Structures. This defense, hold harmless and indemnity
obligation shall not extend to any claim arising solely from the City's gross negligence or willful
misconduct. Each Collaborating Partner's obligation to indemnify, defend and hold harmless
under this Section shall survive termination of this Agreement, and shall be interpreted broadly
so as to apply to any legal or administrative proceeding, arbitration, or enforcement action.
Failure of any Collaborating Partner to comply with this Section 7.14 shall be a Developer Event
of Default and afford the City any and all remedies available to it pursuant to Article 14.
Removal of Existing Leases for Buildings 92, 101, 613 and 607:. Alameda Point
Collaborative currently holds the Existing Leases on Buildings 92, 101, 613 and 607 which are
used for commercial purposes. Alameda Point Collaborative shall be obligated to release its
Existing Lease of Building 92 and Building 101 within days of City's written request and
deliver the Buildings to the City free of all tenancies, provided, however, if the City requests the
release of the Existing Leases for Buildings 92 or 101 before the expiration of any subleases that
Alameda Point Collaborative has entered into, the City and Alameda Point Collaborative shall
work cooperatively to find alternative locations for the subtenants or make other arrangements
for the subtenants. Alameda Point Collaborative shall release the Existing Leases for Buildings
613 and 607 to coincide with the release of Alameda Point Collaborative' s Existing Leases on its
residential property. Notwithstanding anything set forth above, the City shall not be responsible
for any relocation benefits to which any subtenants of the commercials buildings may have under
State or federal law and Alameda Point Collaborative shall indemnify, defend and hold harmless
the City and its officers, its elected and appointed officials, board members, commissioners,
employees, attorneys, agents and successor and assigns against all third party suits, actions,
claims, causes of action, costs, demands, judgments and liens arising out of Alameda Point
Collaborative' s performance or non-performance under this Agreement, including but not
limited to, any relocation obligations to the tenants or occupants of the commercial buildings.
This defense, hold harmless and indemnity obligation shall not extend to any claim arising solely
from the City's gross negligence or willful misconduct.
CITY OBLIGATIONS
Entitlements. The City shall, upon payment of all applicable fees by the Developer or a'
Developer Affiliate required by the Development Agreement, process the applications for the
Supplemental Approvals for the Project in a timely fashion, and shall cooperate with the
Developer or the Developer Affiliate in obtaining any approvals necessary from other
governmental entities or public utilities provided, however, the City shall not be required to incur
any additional costs other than those cost associated with processing of applications and permits
within the City's standard processing procedures unless Developer or the applicable Developer
Affiliate agrees to reimburse the City of any costs associated with expedited processing.
Permits and Ap rn ovals.
City Assistance. The City shall provide reasonable cooperation to the MidPen in
processing MidPen's applications for City permits and approvals, and all other permits,
approvals, and "will serve" letters necessary for construction of the Project.
City Retains Discretion. The Developer acknowledges and agrees that execution
of this Agreement by the City, and the City's approvals obtained pursuant to this Agreement are
with regard to this Agreement only and do not constitute approval by the City in its typical
regulatory or administrative capacity of any required permits, applications, allocations or maps,
are not a substitute for the City's typical application, allocation, mapping, permitting, or approval
process, and in no way limits the discretion of the City in the permit, applications, allocation,
mapping or approval process. In addition to complying with the terms and conditions of this
Agreement, Developer must comply with the City's and other government entities' regulatory and
administrative processes.
Backbone Infrastructure. As a condition precedent to the conveyance of any Phase of the
Property, the City shall use commercially reasonable efforts to cause to be completed the
Backbone Infrastructure in accordance with the MIP and the Main Street Neighborhood Plan.
The City intends to release a Request for Qualifications for developers of the adjacent portions of
the Main Street Neighborhood Plan which will include requirements to construct the Backbone
Infrastructure. The City shall use all commercially reasonable efforts to release the Request for
Proposals, select a developer or developers, negotiate a disposition and development agreement
with the selected developer or developers and require the completion of the Backbone
Infrastructure within the times set forth in the Milestone Schedule. The Developer agrees to
cooperate with the City's efforts to obtain completion of the Backbone Infrastructure including
potentially releasing its interest in certain of the Existing Leases prior to conveyance of a Phase
of the Property in order to accommodate the development of the Backbone Infrastructure. The
City shall perform its usual inspections prior to acceptance of the Backbone Infrastructure.
Estoppel Certificate of Completion. Within ninety (90) days after receipt by the
Developer Affiliate from the City of certificates of occupancy evidencing that: (a) building
occupancy has been granted for all Residential Units for a Phase and/or (b) final building shell
approval has been granted for all portions of a building containing any portion of the
Commercial Space, the City shall issue a certificate of completion for such building or
improvements with respect to the Developer Affiliate's construction obligations pursuant to
Article 5 of this Agreement with respect that particular Phase (an "Estoppel Certificate of
Completion") in a form recordable in the Official Records of the County.
Except as set forth in the following paragraph, an Estoppel Certificate of
Completion shall constitute a conclusive determination that the covenants in this Agreement with
respect to the obligations of Developer Affiliate to construct the applicable Phase have been met
with regards to the Phase of the Project for which such estoppel certificate is being issued. Such
certification shall not be deemed a notice of completion under the California Civil Code, nor
shall it constitute evidence of compliance with or satisfaction of any obligation of the Developer
Affiliate to any holder of deed of trust securing money loaned to finance the Project or any
portion thereof.
An Estoppel Certificate of Completion shall not constitute a conclusive
determination of the satisfaction of the requirements of Section 7.3 with respect to payment of
prevailing wages (if applicable) and related matters (since such determination is within the
jurisdiction of the DIR and the California judicial system and not the City), and the applicable
obligations of the Developer or Developer Affiliate to indemnify, defend and hold harmless set
forth in this Agreement shall expressly survive issuance of an Estoppel Certificate of
Completion.
City Representations. The City acknowledges that the execution of this Agreement by the
Developer is made in material reliance by the Developer on each and every one of the
representations and warranties made by the City in this Section 8.5.
Authority. The City has all requisite right, power and authority to enter into this
Agreement and the documents and transactions contemplated herein and to carry out the
obligations of this Agreement and the documents and transactions contemplated herein. The
City has taken all necessary or appropriate actions, steps and company and other proceedings to
approve or authorize, validly and effectively, the entering into, and the execution, delivery and
performance of this Agreement. This Agreement is a legal, valid and binding obligation of the
City, enforceable against it in accordance with its terms. The representations and warranties of
the City in the preceding sentence of this Section 8.5 are subject to and qualified by the effect of:
(a) bankruptcy, insolvency, moratorium, reorganization and other laws relating to or affecting the
enforcement of creditors' rights generally; and (b) the fact that equitable remedies, including
rights of specific performance and injunction, may only be granted in the discretion of a court.
No Actions. As of the Effective Date only, there is no pending or threatened suit,
action, arbitration, or other legal, administrative, or governmental proceeding or investigation
that affects the Property or that adversely affects the City's ability to perform its obligations
under this Agreement.
Commitments to Third Parties. Except as (i) disclosed in the Preliminary Title
Report and (ii) set forth in EDC Agreement and the Renewed Hope Settlement Agreement, the
City has not made any commitment, agreement or representation to any government authority, or
any adjoining or surrounding property owner or any other third party, that would in any way be
binding on the Developer or would interfere with the Developer's ability to develop and improve
the Property into the Project.
Hazardous Materials. To the best of the City's knowledge and except as disclosed
herein, the City has received no written notice from any government authority regarding any,
and, to the best of the City's knowledge, there are no, violations with respect to any law, statute,
ordinance, rule, regulation, or administrative or judicial order or holding (each, a "Law"),
whether or not appearing in any public records, with respect to the Property, which violations
remain uncured as of the date hereof or on the Closing Date, or releases of Hazardous Materials
that have occurred during the City's possession of the Property, excluding Incidental Migration.
The City has not assumed by contract or law any liability, including any obligation for corrective
action or to conduct remedial actions, of any other Person relating to Hazardous Materials. .
ASSIGNMENT AND TRANSFERS
Definition of Transfer. As used in this Article 9, the term "Transfer" means:
Any total or partial sale, assignment or conveyance, or any trust or power, or any
transfer in any other mode or form, of this Agreement or of the Property and/or the Project or
any part thereof or any interest therein (including, without limitation, any Phase) or of the
improvements constructed thereon, or any contract or agreement to do any of the same which is
not subject to an Estoppel Certificate of Compliance; or
Any total or partial sale, assignment or conveyance, or any trust or power, or any
transfer in any other mode or form, of or with respect to any Controlling Interest (defined below)
in MidPen, any of the Collaborating Partners or any Developer Affiliate, or any contract or
agreement to do any of the same. As used herein, the term "Controlling Interest" means (1) the
ownership (direct or indirect) by one Person of more than twenty (20%) of the profits, capital, or
equity interest of another Person; or (2) the power to direct the affairs or management of another
person, whether by contract, other governing documents or operation of Law or otherwise, and
Controlled and Controlling have correlative meanings. Common Control means that two persons
are both Controlled by the same other person.
Purpose of Restrictions on Transfer. This Agreement is entered into solely for the
purpose of development and operation of the Project on the Property and subsequent use in
accordance with the terms of this Agreement. The qualifications and identity of the
Collaborating Partners and MidPen are of particular concern to the City, in view of:
The importance of the redevelopment, use, operation and maintenance of the
Project to the general welfare of the community.
The fact that a change in ownership or control of the owner of the Property, or
any other act resulting in a change in ownership of the parties in control of any of the
Collaborating Partners or MidPen, is for practical purposes a transfer or disposition of the
Property and the Project.
Restrictions on transfer are necessary in order to assure the achievement of the
goals, objectives and public benefits of this Agreement. Developer agrees to and accepts the
restrictions set forth in this Article 9 as reasonable and as a material inducement to City to enter
into this Agreement. It is because of the qualifications and identity of the Developer that the
City is entering into this Agreement with the Developer and that Transfers are permitted only as
provided in this Agreement.
Prohibited Transfers. The limitations on Transfers set forth in this Article 9 shall apply
with respect to any portion of the Property until issuance by the City of an Estoppel Certificate of
Completion for such portion of the Property. Except as expressly permitted in this Agreement,
the Developer represents and agrees that the Developer has not made or created, and will not
make or create or suffer to be made or created, any Transfer, either voluntarily or by operation of
law, without the prior approval of the City pursuant to Section 9.5. Any Transfer made in
contravention of this Section 9.3 shall be void and shall be deemed to be a default under this
Agreement, whether or not the Developer knew of or participated in such Transfer.
Permitted Transfers. Notwithstanding the provisions of Section 9.3, the following
Transfers shall be permitted (subject to satisfaction of all applicable conditions to such Transfer):
Any Transfer creating a Security Financing Interest consistent with the Financing
Plan, or Phase Update , as applicable, approved by the City pursuant to Section 3.2 (as
demonstrated to the City's reasonable satisfaction), or otherwise consistent with the provisions of
Section 10.1 and 10.2.
Any Transfer directly resulting from the foreclosure of a Security Financing
Interest or the granting of a deed in lieu of foreclosure of a Security Financing Interest and if the
Permitted Mortgagee is the immediate Transferee pursuant to such foreclosure or deed in lieu,
the Permitted Mortgagee's initial Transfer of any portion of the Property to a subsequent
Transferee.
Any Transfer consisting of the rental or subletting of a Residential Unit in the
normal course of the Developer Affiliate's business operations.
Any Transfer due solely to the death or incapacity of an individual.
Any Transfer to a Developer Affiliate, provided however, any subsequent
Transfer by the Developer Affiliate to any other entity other than another Developer Affiliate
shall be subject to the restrictions on Transfer set forth in this Article 9.
After Closing, the transfer by the limited partner of a Developer Affiliate of the
limited partner's partnership interest to an affiliate of the limited partner provided that either the
initial limited partner remains obligated to fund its equity contribution pursuant to the terms of
the partnership agreement, or the affiliate assumes the obligations to fund the equity
contribution, in accordance with the terms of the partnership agreement (if at the time of the
proposed Transfer no equity contribution remains unpaid, then consent shall not be required for
the Transfer of the limited partnership interest);
The removal of a general partner of a Developer Affiliate pursuant to the
partnership agreement of the Developer Affiliate and the replacement of such general partner
with an affiliate of the limited partner, provided that the admission of a non -affiliate of limited
partner shall require the reasonable consent of the City;
Any Transfer of a utility, public right of way, maintenance or access easement
reasonably necessary for the development of the Project (each a "Development Easement").
Other Transfers In City's Sole Discretion. Any Transfer not permitted pursuant to an
express provision of Section 9.4 shall be subject to prior written consent by the City in
accordance with this Section 9.5, which the City may grant or deny in its sole discretion. In
connection with such a proposed Transfer, MidPen, the applicable Collaborating Partner or the
applicable Developer Affiliate shall first submit to the City information regarding such proposed
Transfer, including the proposed documents to effectuate the Transfer, a description of the type
of the Transfer, and such other information as would assist the City in considering the proposed
Transfer, including where applicable, the proposed transferee's financial strength and the
proposed transferee's experience, capacity and expertise with respect to the development,
operation and management of affordable housing developments similar to the Project (or
applicable portion thereof). The City shall approve or disapprove the proposed Transfer, in its
sole discretion, within ninety (90) days of the receipt from MidPen, the applicable Collaborating
Partner or the applicable Developer Affiliate all of the information specified above including
backup documentation and supplemental information reasonably requested by the City. The City
shall specify in writing the basis for any disapproval. If the City should fail to act within such
ninety (90) day period the Party requesting the Transfer shall provide the City with written notice
of such failure to act which notice shall state in 14 -point bold type on the cover page of the
notice and on the envelope containing the notice the following:
FAILURE TO RESPOND TO THIS NOTICE WITHIN TEN (10) BUSINESS
DAYS OF THE DATE OF THE NOTICE WILL RESULT IN THE CITY
WAIVING ITS RIGHTS TO OBJECT TO THE TRANSFER PROPOSED IN
THIS NOTICE.
If the City fails to respond to the Party requesting the Transfer's notice containing the
above language within ten (10) business days of the date of the notice and such notice is
delivered to the address and in the manner set forth in Section 15.1 below, the proposed Transfer
shall be deemed approved.
Effectuation of Permitted or Otherwise Approved Transfers. Not less than thirty (30)
days prior to the intended effectiveness of a Transfer described in this Article 9 (other than
permitted transfers under Section 9.4), the Party requesting the Transfer shall deliver to the City
a notice of the date of effectiveness of the intended Transfer, a description of the intended
Transfer, and such information about the intended Transfer and the transferee as is necessary to
enable the City to determine that the intended Transfer meets the standards for a Transfer under
this Article 9.
Within five (5) Business Days after the completion of any Transfer permitted
pursuant to this Article 9, the Party requesting the Transfer shall provide the City with notice of
such Transfer.
No Transfer shall be permitted unless, at the time of the Transfer, the person or
entity to which such Transfer is made, by an agreement reasonably satisfactory to the City
Attorney and in form recordable among the land records of the County, expressly agrees to
perform and observe, from and after the date of the Transfer, the obligations, terms and
conditions of the Developer under this Agreement and any ancillary agreements entered into by
the Developer pursuant to this Agreement with respect to the portion(s) of the Property and the
Project being transferred; provided, however, that no such transferee shall be liable for the failure
of its predecessor to perform any such obligation prior to transfer. Anything to the contrary
notwithstanding, the holder of a Security Financing Interest whose interest in the Property is
acquired by, through or under a Security Financing Interest or is derived immediately from any
holder thereof shall not be required to give to the City such written agreement until such holder
or other person is in possession of the Property, or applicable portion thereof, or entitled to
possession thereof pursuant to enforcement of the Security Financing Interest.
With the regard to all permitted or otherwise approved Transfers in accordance
with this Article 9, the City shall provide, within fifteen (15) days of request, a written estoppel
to the Developer stating either that Developer has performed any and all obligations required
through the date of such Transfer, or, if such is not the case, stating with specificity the
obligation(s) which the Developer has failed to perform through the date of such Transfer. In the
absence of specific written agreement by the City (which the City may grant or withhold in its
sole discretion), no Transfer permitted by this Agreement or approved by the City shall be
deemed to relieve the transferor from any obligations under this Agreement. Notwithstanding
the foregoing to the contrary, no transferee permitted pursuant to Section 9.4 or approved
pursuant to Section 9.5 shall be liable for any Developer Event of Default caused by Developer
or any other transferee under this Agreement.
SECURITY FINANCING AND RIGHTS OF HOLDERS
Security Financing Interests; Permitted and Prohibited Encumbrances.
Mortgages, deeds of trust, and other real property security instruments are
permitted to be placed upon the Property only as authorized by this Section 10.1. Any security
instrument and related interest approved pursuant to Section 10.1(c) is referred to as a "Security
Financing Interest." Until the applicable Developer Affiliate is entitled to issuance of an
Estoppel Certificate of Completion for a particular portion of the Property, the Developer
Affiliate may place mortgages, deeds of trust, or other reasonable methods of security on such
portion of the Property only for the purpose of securing any approved Security Financing Interest
financing the construction of the Vertical Improvements on the applicable portion of the
Property.
Following the time the applicable Developer Affiliate is entitled to issuance of an
Estoppel Certificate of Completion for a particular portion of the Property, the Developer
Affiliate may place any mortgages, deeds of trust, and other real property security interest it
desires on that portion of the Property subject to the City Regulatory Agreement.
Any mortgage, deed of trust or other real property security interest securing a loan
set forth in any approved Project Financing Plan or Phase Update (or any approved amendment
to such plan or update) shall be deemed an approved Security Financing Interest pursuant to this
Article 10. The holder of a Security Financing Interest is referred to herein as a "Permitted
Mortgagee."
Permitted Mortgagee Not Obligated to Construct. No Permitted Mortgagee is obligated
by, or to perform, any of the Developer Affiliate's obligations under this Agreement, including,
without limitation, to construct or complete any improvements or to guarantee such construction
or completion; nor shall any covenant or any other provision in conveyances from the City to the
Developer Affiliate evidencing the realty comprising the Property or any part thereof be
construed so to obligate such Permitted Mortgagee. However, nothing in this Agreement shall be
deemed to permit or authorize any Permitted Mortgagee to devote the Property or any portion
thereof to any uses, or to construct any improvements thereon, other than those uses or
improvements provided for or authorized by this Agreement.
Notice of Default and Right to Cure. Whenever the City, pursuant to its rights set forth in
Article 14, delivers any notice or demand to the Developer Affiliate with respect to the
commencement, completion, or cessation of the construction of the Project, the City shall at the
same time deliver to each Permitted Mortgagee a copy of such notice or demand. Each such
Permitted Mortgagee shall (insofar as the rights of the City are concerned) have the right, but not
the obligation, at its option, within thirty (30) days after the receipt of the notice, to cure or
remedy or commence to cure or remedy any such default or breach affecting the applicable
portion of the Project and to add the cost thereof to the security interest debt and the lien on its
security interest. Nothing contained in this Agreement shall be deemed to permit or authorize
any Permitted Mortgagee to undertake or continue the construction or completion of the
applicable portion of the Project (beyond the extent necessary to conserve or protect such
improvements or construction already made) without first having expressly assumed in writing
the Developer's obligations to the City relating to the applicable portion of the Project under this
Agreement. The Permitted Mortgagee in that event must agree to complete the applicable portion
of the Project, in the manner provided in this Agreement. Any Permitted Mortgagee properly
completing the applicable portion of the Project pursuant to this Section 10.3 shall assume all
applicable rights and obligations of Developer Affiliate under this Agreement and shall be
entitled, upon written request made to the City, to an Estoppel Certificate of Completion for the
Project or the applicable Phase or Sub -Phase from the City.
Failure of a Permitted Mortgagee to Complete the Project. In any case where six (6)
months after default by the Developer Affiliate in completion of construction of the Project
under this Agreement, the applicable Permitted Mortgagee, having first exercised its option to
construct, has not proceeded diligently with construction, the City shall be afforded those rights
against such Permitted Mortgagee it would otherwise have against the Developer Affiliate under
this Agreement.
Right of City to Cure. In the event of a default or breach by the Developer Affiliate of a
Security Financing Interest prior to the completion of the Project, and if the Permitted Mortgagee
has not exercised its option to complete the Project or applicable Phase, upon five (5) Business
Days' prior written notice to the Developer Affiliate and the Permitted Mortgagee, the City may,
in its sole discretion (but with no obligation to do so) cure the default, prior to the completion of
any foreclosure. In such event the City shall be entitled to reimbursement from the Developer
Affiliate of all costs and expenses incurred by the City in curing the default. The City shall also
be entitled to a lien upon the Project thereof to the extent of such costs and disbursements. The
City agrees that such lien shall be subordinate to any Security Financing Interest, and the City
shall execute from time to time any and all documentation reasonably requested by the holder to
effect such subordination.
Right of City to Satisfy Other Liens. After the Developer Affiliate has had a reasonable
time (but not less than twenty (20) days) to challenge, cure, or satisfy any liens or encumbrances
on any portion of the Property conveyed to the Developer Affiliate thereof, and has failed to do
so, in whole or in part, the City may in its sole discretion (but with no obligation to do so), upon
five (5) Business Days' prior written notice to the Developer Affiliate, satisfy any such lien or
encumbrances. Nothing in this Agreement shall require the Developer Affiliate to pay or make
provision for the payment of any tax, assessment, lien or charge so long as the Developer
Affiliate in good faith shall contest the validity or amount therein and so long as such delay in
payment shall not subject the Property or any portion thereof to forfeiture or sale.
Permitted Mortgagee to be Notified. Each Developer Affiliate shall insert each term
contained in this Article 10 into each Security Financing Interest or shall procure
acknowledgement of such terms by each prospective Permitted Mortgagee of a Security
Financing Interest prior to its coming into any security right or interest in the Property or portion
thereof.
Modifications. If any actual or potential Permitted Mortgagee should, as a condition of
providing financing for development of all or a portion of the Project, request any modification
of this Agreement in order to protect its interests in the Project or this Agreement, the City shall
consider such request in good faith consistent with the purpose and intent of this Agreement and
the rights and obligations of the Parties under this Agreement.
Miscellaneous Provisions.
Limitation on Liability. In the event that any Permitted Mortgagee assumes the
obligations of a Developer Affiliate under this Agreement, such Permitted Mortgagee shall only
be liable or bound by the Developer Affiliate's obligations hereunder for such period as the
Permitted Mortgagee is in possession and/or control of the portion of the Property in which the
Permitted Mortgagee has acquired its interest and, furthermore, notwithstanding anything to the
contrary contained in this Agreement, shall only be liable to the extent of its interest (whether fee
or leasehold) in the portion of the Property and the improvements thereon.
Termination. Notwithstanding any other provision of this Agreement to the
contrary, if any Developer Event of Default shall occur which, pursuant to any provision of this
Agreement, entitles the City to terminate this Agreement and/or to exercise its rights under
Section 14.5 or 14.6, the City shall not be entitled to terminate this Agreement or to exercise its
rights under Section 14.5 of 14.6 unless (i) the City has provided the Permitted Mortgagee with
notice of default pursuant to Section 10.3 and (ii) within the applicable cure period set forth in
Section 10.3, such Permitted Mortgagee shall fail to either:
Cure (Monetary). Cure the Developer Event of Default if the same
consists of the nonperformance by the Developer of any covenant or condition of this Agreement
requiring the payment of money by Developer to the City; and
Cure (Non -Monetary). If the Developer Event of Default is not of the type
described in clause 1 above, either, in such Permitted Mortgagee's sole discretion, (x) cure such
Developer Event of Default, if the same is capable of being cured within the applicable cure
period, or (y) commence, or cause any trustee under the Permitted Mortgage to commence, and
thereafter diligently pursue to completion, steps and proceedings to foreclose on the applicable
portion of the Property pursuant to judicial foreclosure, non judicial foreclosure or deed -in -lieu
process ("Foreclosure"); provided that except as extended by clause (3) below, such Foreclosure
shall be completed within a maximum of eighteen (18) months following the commencement of
such proceeding. Any Developer Event of Default which does not involve a covenant or
condition of this Agreement requiring the payment of money by the Developer to the City shall
be deemed cured if any Permitted Mortgagee shall diligently pursue to completion Foreclosure
and shall, upon acquiring title to all or any portion of the Property, thereafter undertake its
obligations (if any) with respect such portion of the Property pursuant to Section 10.3.
Inability to Foreclose. If a Permitted Mortgagee is prohibited from
commencing or prosecuting a Foreclosure by any process or injunction issued by any court or by
reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceeding
involving the Developer (other than any such process, injunction or court action occurring in
response to any negligence or misfeasance of Permitted Mortgagee), the times specified in
Section 10.9(b)(2) above, for commencing or prosecuting a Foreclosure or other proceedings
shall be extended for the period of the prohibition; provided that the Permitted Mortgagee shall
have fully cured any Developer Event of Default required by Section 10.9(b)(1) above and shall
continue to perform and/or cure all such obligations as and when the same fall due.
Failure of Permitted Mortgagee to Complete Improvements. Upon the date upon
which all cure periods of the Developer have expired following a Developer Event of Default
related to the Completion of construction of any improvements on the Property under this
Agreement, and the notice required by Section 10.3 to a Permitted Mortgagee was properly
given, and such Permitted Mortgagee has not cured or commenced to cure as required by Section
10.9 b , the City may, at its option, upon thirty (30) calendar days' written notice to the
Developer and such Permitted Mortgagee either: (a) purchase the Permitted Mortgage by
payment to the Permitted Mortgagee of all amounts thereunder, including all unpaid principal,
interest, late fees and all other advances and amounts secured by the Permitted Mortgage; or
(b) exercise its rights under Section 14.5 or 14.6 with respect to the applicable portions of the
Property.
Amendment,• Termination. No amendment or modification to this Agreement
may impair or materially alter a Permitted Mortgagee's rights hereunder, or increase a Permitted
Mortgagee's obligations hereunder (whether ongoing or contingent obligations) without the
consent of such Permitted Mortgagee, provided that such Permitted Mortgagee has agreed that its
consent will not be unreasonably withheld. The Developer shall not terminate this Agreement as
to any portion of the Property which is subject to any Security Financing Interest without first
obtaining the prior written consent of all Permitted Mortgagees whose Permitted Mortgages
encumber that portion of the Property.
Condemnation or Insurance Proceeds. Except as otherwise expressly set forth in
this Agreement, the rights of any Permitted Mortgagee, pursuant to its Security Financing
Interest, to receive condemnation or insurance proceeds which are otherwise payable to such
Permitted Mortgagee or to a Party which is its mortgagor shall not be impaired.
Loss Payable Endorsement to Insurance Policy. The City agrees that the name of
the senior -most Permitted Mortgagee may be added as the primary loss payee to the "loss
payable endorsement" attached to any and all insurance policies required to be carried by
Developer under this Agreement.
Constructive Notice and Acceptance. Until such time as an Estoppel Certificate
of Compliance is recorded with respect to any portion of the Property, all of the provisions
contained in this Agreement shall be binding upon and benefit any Person who acquires fee title
to or a leasehold interest in such portion of the Property.
Bankruptcy Affecting; the Developer. The Developer and City hereby agree that
this Agreement (including the rights under Section 14.5 and 14.6 contained herein), and each
Quitclaim Deed shall contain and consist of covenants running with the land and that neither this
Agreement, nor any Quitclaim Deed shall be subject to rejection in bankruptcy and Developer
hereby waives its rights to reject this Agreement and/or any Quitclaim Deed in bankruptcy. If,
notwithstanding the foregoing, the Developer, as debtor in possession, or a trustee in bankruptcy
for the Developer seeks to and does reject this Agreement, or any Quitclaim Deed in connection
with any proceeding involving the Developer under the United States Bankruptcy Code or any
similar state or federal statute for the relief of debtors (a "Bankruptcy Proceeding"), then
without waiver of any right of the City to challenge such rejection, the Developer and the City
hereby agree for the benefit of the City and each and every Permitted Mortgagee that such
rejection shall, subject to such Permitted Mortgagee's acceptance, be deemed the Developer's
assignment of the Agreement or Quitclaim Deed, as applicable, and the portions of the Property
corresponding thereto to the Developer's Permitted Mortgagee(s) in the nature of an assignment
in lieu of foreclosure. Upon such deemed assignment, this Agreement shall not terminate and
each Permitted Mortgagee shall, become the Developer hereunder as if the Bankruptcy
Proceeding had not occurred, unless such Permitted Mortgagee(s) shall reject such deemed
assignment by written notice to the City within fifteen (15) calendar days after receiving notice
of the Developer's rejection of this Agreement in a Bankruptcy Proceeding.
New Agreement and Ground Lease with Permitted Mortgagee.
Request by Senior Permitted Mortgagee. In the event of termination of
this Agreement for any reason (including by reason of any Developer Event of Default or by
reason of the disaffirmance thereof by the Developer, as a debtor-in-possession, or by a receiver,
liquidator or trustee for Developer or its property), the City, if requested by the then -most senior
Permitted Mortgagee (or by the next most senior Permitted Mortgagee if Permitted Mortgagees
with more senior priority do not so request) will enter into a new disposition and development
agreement with the Permitted Mortgagee, provided that such party is the then -owner of the
Property, upon the same terms, provisions, covenants and agreements set forth in this Agreement
and commencing as of the date of termination of this Agreement (collectively, the "New
Agreement"), subject to the following:
Request for New Agreement. Such Permitted Mortgagee or
requesting party shall have provided written notice to the City requesting the New Agreement
within thirty (30) calendar days after the date of termination of this Agreement;
Payment of Due and Unpaid Sums. Such Permitted Mortgagee or
requesting party shall pay to the City at the time of the execution and delivery of the New
Agreement those sums specified in Section 10.9(b) which would, at the time of the execution and
delivery thereof be due and unpaid pursuant to this Agreement but for its termination, and in
addition thereto any reasonable attorneys' fees and experts' fees and court costs and court
expenses (including attorney's and expert's fees) to which the City shall have been subjected by
reason of the Developer Event of Default; and
Perform and Observe All Covenants. Such Permitted Mortgagee
or requesting party shall, subject to the provisions of this Article, be subject to and shall perform
and observe all covenants in this Agreement to be performed and observed by a Permitted
Mortgagee, and failure to do so shall, after notice and opportunity to cure as provided by this
Agreement, be a Developer Event of Default under this Agreement.
Request by the City. In the event of termination of this Agreement for any
reason (including by reason of any Developer Event of Default by Developer or by reason of the
disaffirmance thereof by the Developer, as a debtor-in-possession, or by a receiver, liquidator or
trustee for Developer or its property) the then -most senior Permitted Mortgagee, if requested by
the City, and provided that such party is the then -owner of the Property, will enter into a new
Agreement with the City upon the same terms, provisions, covenants and agreements set forth in
this Agreement and commencing as of the date of termination of this Agreement ("New
Agreement"), subject to the following:
Response to Request for New Agreement. The City shall have
provided written notice to such Permitted Mortgagee requesting the New Agreement within
thirty (30) calendar days after the date of termination of this Agreement, with a copy to each
other Permitted Mortgagee; and
Perform and Observe All Covenants. The Permitted Mortgagee
shall, subject to the provisions of Section 10.9(a) and b), perform and observe all covenants in
this Agreement to be performed and observed by a Permitted Mortgagee and failure to do so
shall, after notice and opportunity to cure, be a Developer Event of Default under this
Agreement.
Priority of New Agreement. Any New Agreement shall be prior to any
Security Financing Interest or other lien, charge, or encumbrance on the Property in favor of
such Security Financing Interest and each Security Financing Interest shall execute such
additional consents and/or subordination agreements as may reasonably requested by the City or
the new Developer to evidence the priority of the New Agreement to all Security Financing
Interests, whether recorded prior or subsequent to execution of the New Agreement.
HAZARDOUS MATERIALS
Obligations Regarding Hazardous Materials.
(a) Existing Property Environmental Conditions. Effective as of the
applicable Phase Closing Date and (i) solely with respect to such Phase and (ii) with respect to
Hazardous Materials that existed on the applicable Phase of the Property prior to the Phase
Closing Date ("Existing Phase Environmental Conditions") affecting such Phase: as between
the applicable Developer Affiliate and the City, the Developer Affiliate shall comply with any
recorded covenants related to the Existing Phase Environmental Conditions, comply with the
Site Management Plan and, as between the City and the Developer Affiliate, the Developer
Affiliate shall be responsible for addressing any additional remediation required at a formerly
closed site by any regulatory agency due to reevaluation in accordance with applicable law by
any regulatory agency of the applied remediation strategy or any change in law or regulation
related to the remediation standards, including any change in remediation standards or risk
screening levels ("Regulatory Reopener"). If the Developer Affiliate effectuates a Transfer
permitted pursuant to Article 9 in the manner required by Article 9, then the transferring
Developer Affiliate shall have no further obligation pursuant to this Section 11.1 with respect to
the portion of the Property Transferred.
(b) New Releases. Effective as of the applicable Phase Closing Date and (i)
solely with respect to such Phase and (ii) with respect to releases of Hazardous Material at the
Phase caused by the Developer Parties, which releases first occur after the applicable Phase
Closing Date, excluding Incidental Migration of Hazardous Materials that existed as of the
applicable Phase Closing Date ("New Releases"): as between the applicable Developer Affiliate
and the City, the Developer Affiliate shall keep and maintain any portion of the Transfer
Property conveyed to the Developer Affiliate in compliance with, and shall not cause or permit
the Transfer Property to be in violation of, any federal, state or local laws, ordinances or
regulations relating to industrial hygiene or to the environmental conditions in, on, under or
emanating from the Transfer Property including, but not limited to, soil and ground water
conditions. The Developer Affiliate shall not use, generate, manufacture, store or dispose of in,
on, or under any portion of the Property conveyed, leased or licensed to the Developer Affiliate,
or transport to or from such Property or the development any Hazardous Materials, except such
of the foregoing as may be customarily kept and used in and about the construction and operation
of residential developments or in accordance with law or this Agreement. The Developer
Affiliate shall be responsible for complying with the requirements of the Site Management
Plan(s) related to the Property after conveyance of the Property or any portion thereof to the
Developer Affiliate.
Notification To City, City Participation. Each Developer Affiliate shall promptly notify
and advise the City Attorney in writing if at any time it receives written notice of: (1) any and all
enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed
or threatened against the Developer Affiliate, the Transfer Property, or the Project pursuant to
any Hazardous Materials Law; (2) all claims made or threatened by any third party against the
Developer Affiliate, the Transfer Property, or the Project relating to damage, injunctive relief,
declaratory relief, violations, contribution, cost recovery compensation, loss or injury resulting
from any Hazardous Materials (the matters set forth in clauses (1) and (2) above are referred to
as "Hazardous Materials Claims"); and (3) the Developer Affiliate's discovery of any
occurrence or condition on any real property adjoining or in the vicinity of the Property or the
Project that could cause part or all of the Property or the Project to be subject to any restrictions
on the ownership, occupancy, transferability or use of the Property or the Project under any
Hazardous Materials Law. At its sole costs and expense, the City shall have the right to join and
participate in, as a party if it so elects, any legal proceedings or actions initiated in connection
with any Hazardous Materials Claims.
Developer's Hazardous Materials. Indemnification. The Developer shall indemnify,
defend (with counsel chosen by the City and reasonably acceptable to the Developer), and hold
harmless the Indemnified Parties as set forth in more detail in Section 12.2.
INDEMNIFICATION
General Indemnification. The Developer shall indemnify, defend (with counsel
chosen by City and reasonably acceptable to the Developer), and hold harmless the
Indemnified Parties against all third party suits, actions, claims, causes of action, costs,
demands, judgments and liens arising out of the Developer's or the Contractors' performance
or non-performance under this Agreement, including but not limited to, any relocation
obligations to the tenants of the Existing Structures under State or federal law, or arising in
connection with entry onto, ownership of, occupancy in, or construction on the Property by
the Developer, the Contractors, any Licensee, or the tenants. This defense, hold harmless
and indemnity obligation shall not extend to any claim arising solely from the applicable
Indemnified Party's gross negligence or willful misconduct. If the Developer effectuates a
Transfer permitted pursuant to Article 9 in the manner required by Article 9, then the
transferring Developer shall have no obligation to indemnify claims arising out of actions or
a failure to act that occurs after the effectiveness of the Transfer. The Developer's
obligation to indemnify, defend and hold harmless under this Section 12.1 shall survive
termination of this Agreement, and shall be interpreted broadly so as to apply to any legal or
administrative proceeding, arbitration, or enforcement action. Notwithstanding the
foregoing to the contrary, provisions of this Section 12.1 shall not apply to matters arising
out of or related to Hazardous Materials, which are addressed in Section 12.2 below.
Hazardous Materials Indemnification. The Developer shall indemnify, defend (with
counsel chosen by City and reasonably acceptable to the Developer), and hold harmless the
Indemnified Parties from and against all third party suits, actions, claims, causes of action, costs,
demands, judgments, liens, damage, cost, expense or liability the City may incur directly or
indirectly arising out of or attributable to any New Release, including without limitation: (1) the
costs of any required or necessary repair, cleanup or detoxification of the Property or the Project,
and the preparation and implementation of any closure, remedial or other required plans and (2)
all reasonable costs and expenses incurred by the City in connection with clause (1), including
but not limited to reasonable attorneys' fees. The defense, hold harmless and indemnity
obligations contained in this Section 12.2 shall not extend to any claim arising solely from the
applicable Indemnified Party's gross negligence or willful misconduct. The Developer's
obligation to indemnify, defend and hold harmless under this Section 12.2 shall survive
termination of this Agreement, and shall be interpreted broadly so as to apply to any legal or
administrative proceeding, arbitration, or enforcement action. If the Developer effectuates a
Transfer permitted pursuant to Article 9 in the manner required by Article 9, then the transferring
Developer shall have no obligation to indemnify claims arising out of actions or a failure to act
that occurs after the effectiveness of the Transfer. If the Developer effectuates a partial Transfer
permitted pursuant to Article 9 in the manner required by Article 9, the transferee shall have no
obligation to indemnify claims arising out of actions or a failure to act that occurs as a result of
the Developer's action with respect to any portion of the Property not transferred to the
transferee.
No Limitations Based Upon Insurance. The indemnification, defense and hold harmless
obligations of the Developer under this Article 12 and elsewhere in this Agreement (sometimes
collectively, the "Indemnification Obligations") shall not be limited by the amounts or types of
insurance (or the deductibles or self-insured retention amounts of such insurance) which the
Developer is required to carry under this Agreement. In claims against any of the Indemnified
Parties by an employee of the Developer, or anyone directly or indirectly employed by the
Developer or anyone for whose acts the Developer may be liable, the Indemnification
Obligations shall not be limited by amounts or types of damages, compensation or benefits
payable by or for the Developer or anyone directly or indirectly employed by the Developer or
anyone for whose acts the Developer may be liable.
INSURANCE REQUIREMENTS
Required Insurance Coverage. Except as otherwise provided in Section 13.11, during the
Term the Developer shall maintain or cause to be maintained and kept in force, at the sole cost
and expense of the Developer or the Contractors the insurance applicable to the Project and
required under this Article 13.
Comprehensive General Liability Insurance. During the Term the Developer shall
maintain or cause to be maintained and kept in force, comprehensive general liability insurance
in an amount not less than Two Million Dollars ($2,000,000) with limits not less than Two
Million Dollars ($2,000,000) each occurrence combined single limit for Bodily Injury and
Property Damage, including premises operations, underground and collapse, completed
operations, contractual liability, independent contractor's liability, broad form property damage
and personal injury, and Five Million Dollars ($5,000,000) general aggregate limit, which
minimum amounts shall be increased by the CPI Increase every five (5) years on the anniversary
of the Effective Date and covering, without limitation, all liability to third parties arising out of
or related to the Developer's performance of its obligations under this Agreement or other
activities of the Developer at or about the Property and the Project, including, without limitation,
the Developer's obligations under Section 12.1. Such insurance in excess of One Million Dollars
($1,000,000) may be covered by a so-called "umbrella" or "excess coverage" policy.
Vehicle Liability Insurance. During the Term the Developer shall maintain or cause to be
maintained and kept in force, vehicle liability insurance in an amount not less than One Million
Dollars ($1,000,000) (combined single limit) including any automobile or vehicle whether hired
or, if applicable, owned by the Developer.
Workers' Compensation Insurance. During the Term the Developer shall maintain or
cause to be maintained and kept in force, workers' compensation insurance in an amount not less
than the statutory limits in accordance with Article I of Chapter 4 of Part I of Division 4 of the
California Labor Code.
Property Insurance. After conveyance of any portion of the Property to the Developer
Affiliate and continuing through the Term, the Developer Affiliate shall maintain or cause to be
maintained and kept in force, property insurance covering all real and personal (non -expendable)
property (except for personal property otherwise typically covered by insurance maintained by
tenants) conveyed to Developer Affiliate and the Vertical Improvements, in form appropriate for
the nature of such property, covering all risks of loss, including earthquake (only if required by
the Developer Affiliate's lender and to the extent available at commercially reasonable cost), for
100% of the replacement value, with deductible, if any, reasonably acceptable to the City Risk
Manager.
Construction Contractor's Insurance. The Developer Affiliate shall cause the General
Contractor to maintain insurance of the types and in at least the minimum amounts described in
Sections 13.2 (exclusive of the cross-reference to Section 12.1), 13.3, and 13.4, and shall require
that such insurance shall meet all of the general requirements of Sections 13.8 and 13.9. Except
with respect to construction of tenant improvements, the Developer Affiliate shall also cause the
General Contractor to obtain and maintain Contractor's Pollution Liability Insurance covering the
General Contractor and all subcontractors in an amount of not less than Ten Million Dollars
($10,000,000) with a maximum deductible of One Hundred Thousand Dollars ($100,000) with
coverage continuing for ten years after completion of construction.
Pollution Liability Insurance Policy.
(a) Within the time set forth in the Milestone Schedule and as a condition
precedent to any conveyance hereunder, the Developer shall procure to the reasonable
satisfaction of Developer and the City, at its cost, a real estate environmental liability insurance
policy (a "Pollution Liability Insurance Policy") covering pre-existing conditions with a ten
(10) year term that names the Developer as the named insured with the right to control the
policy, and the City as an additional insured. The Pollution Liability Insurance Policy shall meet
the requirements of Section 13.9, shall include a Five Million ($5,000,000) policy per claim and
in the aggregate coverage limit and a maximum deductible of One Hundred Thousand Dollars
($100,000) or other amount reasonably agreed by the City, and shall provide the following types
of coverage:
Pollution Legal Liability;
On -Site and Off -Site Clean -Up Costs;
Non -Owned Disposal Site;
In -Bound and Out -Bound Contingent Transportation
Legal Defense Expense
Business Interruption for Developer, including to the extent reasonably
available, soft -costs and construction delays
(b) The Developer shall confer with and consider in good faith the input of the
City in connection with procurement of a Pollution Liability Insurance Policy. The Developer
shall pay the premiums and any other costs of procuring the Pollution Liability Insurance Policy,
and any required deductible amount to activate the insurance in the event of a claim.
(c) Nothing in this Agreement shall preclude or prevent the Developer from
seeking and applying proceeds from claims made under the Pollution Liability Insurance Policy
toward costs of remediation of Hazardous Materials provided, however, that the Developer shall
be solely responsible for the payment of any deductible and other costs in connection with
procuring such proceeds.
(d) Developer shall use commercially reasonable efforts to renew the
Pollution Liability Insurance Policy for one additional ten (10) year term prior to expiration of
the Pollution Liability Insurance Policy.
General Insurance Requirements. With the exceptions of the Pollution Liability
Insurance Policy, the insurance required by this Article 13 shall be provided under an occurrence
form, and the Developer shall maintain (or cause to be maintained) such coverage continuously
throughout the Term of this Agreement (except for the General Contractor's insurance
requirement set forth in Section 13.6, which shall be maintained until the Developer Affiliate is
entitled to issuance of an Estoppel Certificate of Completion for the applicable Phase and the
Pollution Liability Insurance Policy, which shall be maintained as specified in Section 13.7).
Should any of the required insurance be provided under a form of coverage that includes an
annual aggregate limit or provides that claims investigation or legal defense costs be included in
such annual aggregate limit, such annual aggregate limit shall be two and one-half (2.5) the
occurrence limits specified above.
Additional Requirements. The insurance policies required pursuant to this Article 13
(other than Workers' Compensation insurance) shall be endorsed to name as additional insureds
the City and its elected and appointed officials, board members, commissions, officers,
employees, attorneys, agents, volunteers (the "Additional Insureds"). All insurance policies
shall contain:
(a) an agreement by the insurer to give the City at least thirty (30) days' notice
(ten (10) days' notice for non-payment of premium) prior to cancellation or any material change
in said policies;
except with respect to the Pollution Liability Insurance Policy, an agreement by
the insurer that such policies are primary and non-contributing with any insurance that may be
carried by the City. For the Pollution Liability Insurance Policy, the policy shall contain an
agreement by the insurer that, upon acquisition of any portion of the Property by the Developer,
with respect to the portion of the Property so acquired, whether by lease or quitclaim deed, the
Pollution Liability Insurance Policy is primary and non-contributing with any insurance that may
be carried by the City for environmental conditions at, on or under acquired Property;
a provision that no act or omission of the Developer shall affect or limit the
obligation of the insurance carrier to pay the amount of any loss sustained by the Additional
Insureds up to applicable policy limits; and
a waiver by the insurer of all rights of subrogation against the Additional Insureds
in connection with any claim, loss or damage thereby insured against.
all insurance companies providing coverage pursuant to this Article 13, shall be
insurance organizations authorized by the Insurance Commissioner of the State of California to
transact the business of insurance in the State of California, and shall have an A. M. Best's rating
of not less than "AMI".
Certificates of Insurance. Upon the City Risk Manager's request at any time during the
Term of this Agreement, the Developer shall provide certificates of insurance, in form and with
insurers reasonable acceptable to the City Risk Manager, and/or insurance policies including all
endorsements, evidencing compliance with the requirements of this section, and shall provide
complete copies of such insurance policies, including a separate endorsement naming the
Additional Insureds as additional insureds.
Alternative Insurance Compliance. During such time that a Permitted Mortgagee imposes
insurance requirements that are inconsistent with the requirements set forth in Article 13, the
Developer may satisfy the insurance requirements of this Article 13, other than the Pollution
Liability Insurance Policy by meeting the requirements of such Permitted Mortgagee; provided-
that
rovidedthat Developer shall provide at least five (5) Business Days prior written notice to the City
specifying: (x) the nature of the inconsistency; (y) a statement that there is no commercially
reasonable way for the Developer to comply with both the City's and investor's insurance
requirement; and (z) the alternative insurance requirement the Developer intends to comply with.
DEFAULT AND REMEDIES
Application of Remedies. This Article 14 shall govern the Parties' rights to terminate this
Agreement and the Parties' remedies for breach or failure under this Agreement.
No Fault of Parties.
Bases For No Fault Termination. The following events constitute a basis for a
Party to terminate this Agreement without the fault of the other: if despite the responsible Party's
good faith and diligent efforts, a condition precedent set forth in Section 4.3 is not satisfied or,
when applicable, waived by the benefitting Party, prior to the date for such satisfaction/waiver
(as such date may be extended pursuant to this Agreement), unless such failure is caused by the
default of a Party, in which case Section 14.3 or 14.4 shall apply.
Termination Notice• Effect of Termination. Upon the happening of an event
described in Section 14.2(a):
(1) The Parties shall meet and confer in good faith for a period not to
exceed sixty (60) calendar days in an effort to agree upon a mutually acceptable amendment to
this Agreement to address the failed condition which amendment may include designating either
MidPen or a different Collaborating Partner to assume the obligations to acquire or develop a
particular Phase; and
(2) If the parties fail to reach agreement pursuant to Section 14.2(b)(1)
or if MidPen or a different Collaborating Partner fail to assume the obligations to acquire or
develop the particular Phase of the Project at issue, at the election of either Party, this Agreement
may be terminated with respect to all Phases not previously conveyed to a Developer Affiliate by
written notice to the other Party.
Upon a termination pursuant to this Section 14.2, any costs incurred by a Party in
connection with this Agreement and the Project shall be completely borne by such Party and
neither Party shall have any rights against or liability to the other, except with respect to: (1) any
payments made by the Developer to the City prior to the termination pursuant to Article 2 shall
remain the property of the City; (2) any funds remaining in Escrow pursuant to Article 4 shall be
returned to Developer, (3) the delivery of plans and documents as set forth in Section 14.7; and
(4) the survival of certain terms of this Agreement as provided in Section 14.8.
Fault of City.
City Event of Default. Each of the following events, if uncured after expiration of
the applicable cure period, shall constitute a "City Event of Default":
The City without good cause fails to convey the Property within the time
and in the manner specified in Article 4 and the applicable Developer Affiliate is otherwise
entitled to such conveyance.
The City breaches any other material provision of this Agreement.
The material breach of any of the City's representations or warranties set
forth in this Agreement.
Notice and Cure• Remedies. Upon the happening of an event described in Section
14.3(a), the Developer or Developer Affiliate shall first notify the City in writing of its purported
breach or failure. The City shall have thirty (30) days from receipt of such notice to cure such
breach or failure; provided, however, that if such breach or failure cannot reasonably be cured
within such thirty (30) day period and the City has commenced the cure within such thirty (30)
day period and thereafter is diligently working in good faith to complete such cure, the City shall
have such longer period of time as may reasonably be necessary to cure the breach or failure,
provided, however, in any event the breach or failure must be cured within one hundred twenty
(120) days. Notwithstanding anything to the contrary herein, if the City and the Developer are in
good faith disputing whether the City has caused a breach or failure of performance of this
Agreement, then the City shall not be deemed to have caused such breach or failure of
performance until the City has been determined by a court of competent jurisdiction to have
caused a breach or failure under this Agreement. If the City does not cure within the applicable
cure period set forth above, then the event shall constitute a City Event of Default, and the
Developer shall be entitled to the following rights and remedies:
Prior to Phase 1 Closing. With respect to a City Event of Default occurring
prior to the Phase 1 Closing, the Developer shall be entitled to: (A) terminate in writing this
entire Agreement; or (B) seek specific performance of this Agreement against the City. The
above remedies shall constitute the exclusive remedies of the Developer for a City Event of
Default occurring prior to the Phase 1 Closing.
After Phase 1 Closing. With respect to a City Event of a Default that
occurs after the Phase 1 Closing, the Developer shall be entitled seek specific performance of
this Agreement against the City; and/or (ii) exercise any other remedy against the City permitted
by law or under this Agreement, provided, however in no event shall the Developer be entitled to
seek or receive consequential damages.
Fault of Developer.
Developer Event of Default. Each of the following events, if uncured after
expiration of the applicable cure period, shall constitute a "Developer Event of Default":
A Developer Affiliate refuses for any reason (including, but not limited to,
lack of funds) to accept conveyance from the City of the Transfer Property or any portion thereof
within the time and in the manner specified in Article 4 other than a failure of a condition
precedent set forth in Section 4.3(b).
The Developer or a Developer Affiliate fails to meet the Milestone
Schedule (as the same may be extended pursuant to this Agreement) with respect to conveyance
of any portion of the Property.
A Developer Affiliate fails to construct the Project in the manner set forth
in Article 5 by the applicable Major Milestone Schedule deadlines (as the same may be extended
pursuant to this Agreement) or a Developer Affiliate fails to meet a Progress Milestone Date and
as a result it would be impossible for the Developer Affiliate to meet a subsequent Major
Milestone Date.
A Collaborating Partner fails to deliver a Release Agreement or release the
Existing Leases within the time and as required pursuant to this Agreement or a Collaborating
Partner violates the terms of any Release Agreement.
A Collaborating Partner fails to relocate any of the tenants of the Existing
Structures within the time set forth in the Milestone Schedule in a manner consistent with the
applicable laws.
Article 9.
The Developer attempts or completes a Transfer except as permitted under
The Developer breaches any material provision of this Agreement.
Any representation or warranty of the Developer contained in this
Agreement or in any application, financial statement, certificate or report submitted to the City in
connection with this Agreement proves to have been incorrect in any material and adverse
respect when made and continues to be materially adverse to the City.
A court having jurisdiction shall have made or entered any decree or
order: (A) adjudging a Collaborating Partner or MidPen to be bankrupt or insolvent, (B)
approving as properly filed a petition seeking reorganization of a Collaborating Partner or
MidPen seeking any arrangement for the Collaborating Partner or MidPen under the bankruptcy
law or any other applicable debtor's relief law or statute of the United States or any state or other
jurisdiction, (C) appointing a receiver, trustee, liquidator, or assignee of the Collaborating
Partner in bankruptcy or insolvency or for any of their properties, or (D) directing the winding up
or liquidation of a Collaborating Partner or MidPen.
A Collaborating Partner or MidPen shall have assigned its assets for the
benefit of its creditors (other than pursuant to a Security Financing Interest) or suffered a
sequestration or attachment of or execution on any substantial part of its property, unless the
property so assigned, sequestered, attached or executed upon shall have been returned or released
within ninety (90) days after such event.
A Collaborating Partner or MidPen shall have voluntarily suspended its
business, or the Collaborating Partner or MidPen shall have been dissolved or terminated.
Notice and Cure; Remedies. Upon the happening of any event described in
Section 14.4(a), the City shall first notify the Developer in writing of its purported breach or
failure. The Developer shall have thirty (30) days from receipt of such notice to cure such
breach or failure; provided, however, that if such breach or failure cannot reasonably be cured
within such thirty (30) day period and the Developer has commenced the cure within such thirty
(30) day period and thereafter is diligently working in good faith to complete such cure, provided
however, in any event the breach or failure must be cured within one hundred twenty (120) days.
Notwithstanding the above cure period, a default described in paragraph (9) (10) or (11) of
Section 14.4(a) shall constitute a Developer Event of Default immediately upon its occurrence
without need for notice and without opportunity to cure. Notwithstanding anything to the
contrary herein, if the City and the Developer are in good faith disputing whether the Developer
has caused a breach or failure of performance of this Agreement, then the Developer shall not be
deemed to have caused such breach or failure of performance until the Developer has been
determined by a court of competent jurisdiction to have caused a breach or failure under this
Agreement.
If the Developer does not cure within the applicable cure period set forth above, then the event
shall constitute a Developer Event of Default and the City shall be afforded all of the following
rights and remedies: If the Developer Event of Default is caused by MidPen, during the cure
period described above, the Collaborating Partners may propose to the City a replacement for
MidPen to assume MidPen's obligations under this Agreement. The City shall approve or
disapprove any such replacement for MidPen in accordance with the procedures set forth in
Section 9.5. Any proposal to replace MidPen shall also include information on how the
replacement entity will cure the Developer Event of Default.
If the Developer Event of Default is caused by a Collaborating Partner, during the cure period set
forth above, any other Collaborating Partner or MidPen can offer to assume the defaulting
Collaborating Partner's rights and responsibilities pursuant to this Agreement. If a Collaborating
Partner or MidPen assume the defaulting Collaborating Partners rights and responsibilities under
this Agreement, the City shall accept such assumption as a cure for the Developer Event of
Default if (i) the assuming Collaborating Partner or MidPen cure the existing default caused by
the defaulting Collaborating Partner and (ii) the defaulting Collaborating Partner assigns its
Existing Leases to MidPen or the assuming Collaborating Partner.
Prior to Phase I Closing Date. With respect to a Developer Event of
Default occurring prior to the Phase 1 Closing Date, the City shall be entitled to (A) terminate in
writing this entire Agreement and (B) exercise the rights and remedies described in Section 14.7.
The above remedies shall constitute the exclusive remedies of the City for a Developer Event of
Default occurring prior to the Closing on the first Phase of the Property.
Between Phase 1 Closing Date and Prior to Estoppel Certificate of
Completion. With respect to a Developer Event of Default occurring after the Phase 1 Closing
Date but prior to the issuance of an Estoppel Certificate of Completion for the Final Phase, the
City shall be entitled to: (A) terminate in writing this Agreement with respect to those portions of
the Property that have not been conveyed to a Developer Affiliate if such Developer Event of
Default is the result of any failure of conditions or obligations required to be met for the
conveyance of Phases of the Property; (B) seek specific performance of any Vertical
Improvement Completion Assurance if such Developer of Event of Default -is the result of a
default of the provisions of Article 5; (C) exercise the rights and remedies described in Sections
14.5, 14.6 and 14.7; and/or (D) exercise any other remedy against the Developer permitted by
law or under the terms of this Agreement. Notwithstanding anything set forth herein, the City
shall not be entitled exercise any of its remedies set forth above against a Developer Affiliate that
has accepted conveyance of a portion of the Property unless such Developer Event of Default is
caused by such Developer Affiliate.
After Estoppel Certificate of Completion. With respect to a Developer
Event of Default occurring after the Developer is entitled to an Estoppel Certificate of
Completion for the final Phase of the Project, the City shall be entitled to: (A) prosecute an
action for damages against the Developer; (B) seek specific performance of this Agreement
against the Developer; and/or (C) exercise any other remedy against the Developer permitted by
law or under the terms of this Agreement.
Right of Reverter/Power of Termination. If this Agreement is terminated pursuant to
Section 14.4(b)(2) following the Closing on any portion of the Property and prior to the time
when the applicable Developer Affiliate is entitled to issuance of an Estoppel Certificate of
Completion for the final Phase of the Project, then the City may, in addition to other rights
granted in this Agreement, re-enter and take possession of any portion of the Property conveyed
to the Developer Affiliate not subject to (i) an Estoppel Certificate of Completion or (ii) a current
building permit for Vertical Improvements that are subject to a Vertical Improvement
Completion Assurance ("Revested Parcel") with all improvements on the Revested Parcel, and
revest in the City the estate previously conveyed to the Developer Affiliate by the City with
respect to the Revested Parcel. The City's rights under this Section 14.5 shall terminate and be of
no further force and effect once the Developer is entitled to an Estoppel Certificate of
Completion for the final Phase of the Project.
Such right of reverter shall be subordinate and subject to and be limited by and
shall not defeat, render invalid, or limit:
Any Security Financing Instrument with respect to the Revested Parcel; or
Any rights or interests provided in this Agreement for the protection of the
holder of a Security Financing Interest with respect to the Revested Parcel, provided that the
holder has elected to complete the Project in a manner provided in this Agreement.
Upon revesting in the City of title to the Revested Parcel as provided in this
Section 14.5, the City shall, in a commercially reasonable manner resell the Revested Parcel to a
qualified and responsible party or parties (as determined by the City) who will assume the
obligation of making or completing the Project on the Revested Parcel or such other
improvements acceptable to the City. Upon such resale of the Revested Parcel, the proceeds
thereof shall be applied as follows:
First to reimburse the City for all costs and expenses incurred by the City,
including but not limited to salaries of personnel and legal fees incurred in connection with the
recapture, management, and resale of the Revested Parcel (but less any income derived by the
City from any part of the Revested Parcel in connection with such management); all taxes,
installments of assessments payable prior to resale, and water and sewer charges with respect to
the Revested Parcel (or, in the event the Revested Parcel is exempt from taxation or assessment
or such charges during the period of ownership by the City, an amount equal to the taxes,
assessments, or charges that would have been payable if the Revested Parcel was not so exempt);
any payments made or necessary to be made to discharge any encumbrances or liens existing on
the Revested Parcel at the time of revesting of title in the City or to discharge or prevent from
attaching or being made any subsequent encumbrances or liens due to obligations, defaults, or
acts of the Developer Affiliate, its successors or transferees; expenditures made or obligations
incurred with respect to the making or completion of the improvements on the Revested Parcel
or any part thereof; and any amounts otherwise owing the City by the Developer Affiliate and its
successors or transferee.
Second, to reimburse the Developer Affiliate, its successor or transferee,
up to the amount equal to any payments made by the Developer Affiliate to the City pursuant to
Article 2, plus the fair market value of the improvements the Developer Affiliate has placed on
or for the benefit of the Revested Parcel, less any gains or income withdrawn or made by the
Developer Affiliate from the Revested Parcel or the improvements thereon. Notwithstanding the
foregoing, the amount calculated pursuant to this paragraph (2) shall not exceed the fair market
value of the Revested Parcel together with the improvements thereon as of the date of the
Developer Event of Default which gave rise to the City's exercise of the right of reverter.
Any balance remaining after such reimbursements shall be retained by the
City as its property.
The rights established in this Section 14.5 are to be interpreted in light of the fact
that the City will convey the Property to the Developer Affiliate for development and not for
speculation.
Option to Repurchase, Reenter and Repossess.
The City shall have the additional right at its option to repurchase, reenter, and
take possession of the Property not subject to (i) an Estoppel Certificate of Completion or (ii) a
current building permit for Vertical Improvements that are subject to a Vertical Improvement
Completion Assurance with all improvements thereon, if this Agreement is terminated pursuant
to Section 14.4(b)(2) after the Phase 1 Closing Date and prior to the time when the applicable
Developer Affiliate is entitled to issuance of an Estoppel Certificate of Completion for the final
Phase of the Project. The City's rights under this Section 14.6 shall terminate and be of no further
force and effect once the Developer is entitled to an Estoppel Certificate of Completion for the
final Phase of the Project.
Such right to repurchase, reenter, and repossess, to the extent provided in this
Agreement, shall be subordinate and subject to and be limited by and shall not defeat, render
invalid, or limit any Security Financing Instrument with respect to the Property; or any rights or
interests provided in this Agreement for the protection of the holder of a Security Financing
Interest with respect to the Property, provided that the Permitted Mortgagee has elected to
complete the Project in a manner provided in this Agreement.
To exercise its right to repurchase, reenter and take possession with respect to the
Property not subject to (i) an Estoppel Certificate of Completion or (ii) a current building permit
for Vertical Improvements that are subject to a Vertical Improvement Completion Assurance, the
City shall pay to the applicable Developer Affiliate in cash an amount equal to any payments
made by the Developer Affiliate to the City in cash pursuant to Sections 2.2 of this Agreement,
lLus the lesser of the (1) actual cost and (2) the fair market value of the improvements
constructed on the Property subject to the Option by the Developer Affiliate at the time of the
repurchase, reentry, and repossession, less any gains or income withdrawn or made by the
Developer Affiliate from the portion of the Property subject to the Option, less the amount of any
liens or encumbrances on the portion of the Property subject to the Option which the City
assumes or takes subject to, less any damages to which the City is entitled under this Agreement
by reason of the Developer Event of Default.
Plans, Data and Approvals. If this Agreement is terminated pursuant to Section
14.2(a)(1) or Section 14.4, then the Developer or the Developer Affiliate shall promptly deliver
to the City copies of all plans and specifications for the Project (subject to being released by any
architects or engineers possessing intellectual property rights), all permits and approvals obtained
in connection with the Project, and all applications for permits and approvals not yet obtained but
needed in connection with the Project.
Survival. Upon termination of this Agreement under this Article 14, those provisions of
this Agreement that recite that they survive termination of this Agreement shall remain in effect
and be binding upon the Parties notwithstanding such termination.
Rights and Remedies Cumulative. Except as otherwise provided, the rights and remedies
of the Parties are cumulative, and the exercise or failure to exercise any right or remedy shall not
preclude the exercise, at the same time or different times, of any right or remedy for the same
default or any other default.
GENERAL PROVISIONS
Notices Demands and Communications.
Method. Any notice or communication required hereunder to be given by the
City or the Developer shall be in writing and shall be delivered by each of the following
methods: (1) electronically (e.g., by e-mail delivery); and (2) either personally, by reputable
overnight courier, or by registered or certified mail, return receipt requested. Notwithstanding the
time of any electronic delivery, the notice or communication shall be deemed delivered as
follows:
If delivered by registered or certified mail, the notice or communication
shall be deemed to have been given and received on the first to occur of: (A) actual receipt by
any of the addressees designated below as a party to whom notices are to be sent; or (B) five (5)
days after the registered or certified letter containing such notice, properly addressed, with
postage prepaid, is deposited in the United States mail. If delivered personally or by overnight
courier, a notice or communication shall be deemed to have been given when delivered to the
Party to whom it is addressed.
Either Party may at any time, by giving ten (10) days' prior written notice
to the other Party pursuant to this section, designate any other address in substitution of the
address to which such notice or communication shall be given.
Addresses. Notices shall be given to the Parties at their addresses set forth below:
If to the City to: City of Alameda
Alameda City Hall, Rm 320
2263 Santa Clara Avenue
Alameda, CA 94501
Attn: City Manager
Telephone: 510-747-4700
Facsimile: 510-865-1498
Email: jkeimach@alamedaca.gov
With a copy to: City of Alameda
Alameda City Hall, Rm 280
2263 Santa Clara Avenue
Alameda, CA 94501
Attn: City Attorney
Telephone: 510-747-4752
Facsimile: 510-865-4028
Email: jkern@alamedacityattorney.org
If to Developer to:
MidPen Housing Corporation
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attention: President
Telephone: 650-356-2900
Fax Number: 650-357-9766
With copies to: Alameda Point Collaborative
677 W. Ranger Avenue
Alameda, CA 94501
Attn: Executive Director.
Telephone: 510-898-7800
With copies to: Building Futures With Women and Children
1395 Bancroft Avenue
San Leandro, CA 94577
Attn: Executive Director
Telephone: 510-357-0205
With copies to: Operation Dignity
3850 San Pablo Avenue, Suite 102
Emeryville, CA 94608
Attn: Executive Director
Telephone: 800-686-9036
Special Requirement. If failure to respond to a specified notice, request, demand
or other communication within a specified period would result in a deemed approval, a
conclusive presumption, a prohibition against further action or protest, or other adverse result
under this Agreement, the notice, request, demand or other communication shall state clearly and
unambiguously on the first page, with reference to the applicable provisions of this Agreement,
that failure to respond in a timely manner could have a specified adverse result.
Non -Liability of Officials, Employees and Agents. No City elected or appointed official,
board member, commission, officer, employee, attorney, agent, volunteer or their respective
successors and assigns shall be personally liable to the Developer, or any successor in interest, in
the event of a City Event of Default.
Time of the Essence. Time is of the essence in this Agreement.
Title of Parts and Sections. Any titles of the Sections or subsections of this Agreement
are inserted for convenience of reference only and shall be disregarded in interpreting any of its
provisions.
Applicable Law; Interpretation. This Agreement shall be interpreted under the laws of the
State of California. This Agreement shall be construed in accordance with its fair meaning, and
not strictly for or against either Party. This Agreement has been reviewed and revised by counsel
for each Party, and no presumption or rule that ambiguities shall be construed against the
drafting Party shall apply to the interpretation or enforcement of this Agreement.
Severability. If any term of this Agreement is held in a final disposition by a court of
competent jurisdiction to be invalid, then the remaining terms shall continue in full force.
Legal Actions. Any legal action under this Agreement shall be brought in the Alameda
County Superior Court. If any legal action is commenced to interpret or to enforce the terms of
this Agreement or to collect damages as a result of any breach of this Agreement, then the Party
prevailing in any such action shall be entitled to recover against the Party not prevailing all
reasonable attorneys' fees and costs incurred in such action (and any subsequent action or
proceeding to enforce any judgment entered pursuant to an action on this Agreement) including
any appeals. In the case of the attorneys' fees payable to the City when the City has been
represented by legal counsel employed within the City Attorney's Office, the attorneys' fees shall
be measured by the reasonable attorneys' fees that would have been paid by the City had it
instead been represented by outside counsel in the matter.
Binding Upon Successors, Covenants to Run With Land. This Agreement shall be
binding upon and inure to the benefit of the heirs, administrators, executors, successors in
interest, and assigns of each of the Parties, and the terms of this Agreement shall constitute
covenants running with the land; provided, however, that there shall be no Transfer by the
Developer except as permitted in Article 9. Any reference in this Agreement to a specifically
named Party shall be deemed to apply to any successor, heir, administrator, executor, successor,
or assign of such Party who has acquired an interest in compliance with the terms of this
Agreement or under law.
Parties Not Co -Venturers. Nothing in this Agreement is intended to or does establish the
Parties as partners, co -venturers, or principal and agent with one another. The City has not
provided any financial assistance in connection with this Agreement or the Project, this
Agreement constitutes an arms -length transaction.
Provisions Not Merged With Quitclaim Deed. None of the provisions of this Agreement
shall be merged by the Quitclaim Deed or any other instrument transferring title to any portion of
the Property, and neither the Quitclaim Deed nor any other instrument transferring title to any
portion of the Property shall affect this Agreement.
Entire Understanding of the Parties. This Agreement and any subsequent agreements
contemplated by this Agreement to be entered into by the Parties constitute the entire
understanding and agreement of the Parties with respect to the conveyance of the Property and
the development of the Project.
Approvals.
City Actions. Whenever any approval, notice, direction, consent, request,
extension of time, waiver of condition, termination, or other action by the City is required or
permitted under this Agreement, such action may be given, made, or taken by the City Manager,
without further approval by the City Council, and any such action shall be in writing, provided,
however, any such actions that would extend a Major Milestone Date (other than as allowed in
Section 1.3 or 1.4) must be approved by the City Council.
Standard of Approval. Whenever this Agreement grants the City or the Developer
the right to take action, exercise discretion or make allowances or other determinations, the City
or the Developer shall act reasonably and in good faith, except where a sole discretion standard
is specifically provided.
Authority of Developer. MidPen and the Collaborating Partners executing this
Agreement on behalf of the Developer do hereby covenant and warrant, each as to itself only,
that:
corporation;
Each is a duly authorized and existing California nonprofit public benefit
Each is and shall remain in good standing and qualified to do business in the State
of California;
Each has full right, power and authority to enter into this Agreement and to carry
out all actions on its part contemplated by this Agreement;
the execution and delivery of this Agreement were duly authorized by proper
action of each Collaborating Partner and MidPen, and no consent, authorization or approval of
any person is necessary in connection with such execution and delivery or to carry out all actions
on the Developer's part contemplated by this Agreement, except as have been obtained and are in
full force and effect;
the persons executing this Agreement on behalf of each Collaborating Partner and
MidPen have full authority to do so; and
this Agreement constitutes the valid, binding and enforceable obligation of each
Collaborating Partner and MidPen.
Amendments. This Agreement may be amended only by means of a writing signed by
the Parties, and pursuant to a resolution approved by the City Council, except that amendments
expanding the Property to which this Agreement applies shall be approved by ordinance adopted
by the City Council.
Multiple Originals, Counterparts. This Agreement may be executed in multiple originals,
each of which is deemed to be an original, and may be signed in counterparts.
Operating Memoranda. The Parties acknowledge that the provisions of this Agreement
require a close degree of cooperation, and that new information and future events may
demonstrate that changes are appropriate with respect to the details of performance of the Parties
under this Agreement. The Parties agree to cooperate with each other with regard to changes
that may be needed in this Agreement as a result of the proposed development of the adjacent
properties by the Market Rate Developer and the development of the Backbone Infrastructure.
The Parties desire, therefore, to retain a certain degree of flexibility with respect to the details of
performance of those items covered in general terms under this Agreement. If and when, from
time to time during the term of this Agreement, the Parties find that refinements or adjustments
regarding details of performance are necessary or appropriate, they may effectuate such
refinements or adjustments through a memorandum (individually, an "Operating
Memorandum", and collectively, "Operating Memoranda") approved by the Parties which,
after execution, shall be attached to this Agreement as addenda and become a part hereof. This
Agreement describes some, but not all, of the circumstances in which the preparation and
execution of Operating Memoranda may be appropriate.
Operating Memoranda that implement the provisions of this Agreement or that
provide clarification to existing terms of this Agreement or revise Progress Milestone Dates may
be executed on the City's behalf by its City Manager, or the City Manager's designee, without
action or approval of the City Council, provided such Operating Memoranda do not change
material terms of this Agreement or alter any Major Milestone Dates: Operating Memoranda
shall not require prior notice or hearing, and shall not constitute an amendment to this
Agreement. Any substantive or significant modifications to the terms and conditions of
performance under this Agreement shall be processed as an amendment of this Agreement in
accordance with Section 15.14, and must be approved by resolution of the City Council.
DEFINITIONS AND EXHIBITS
Definitions. In addition to the terms defined elsewhere in this Agreement, the following
definitions shall apply:
"Affordable Housing Units" means the Very Low -Income Units and Low -
Income Units developed in accordance with this Agreement subject to the City Regulatory
Agreement.
"Agreement" means this Disposition and Development Agreement.
"Approved Construction Documents" means the construction plans and
specifications submitted by a Developer Affiliate and approved by the City in connection with
the City's grant of the necessary grading, demolition, building, and related permits for the
Project, together with any modifications thereto processed and approved, as appropriate, in
accordance with applicable City ordinances, rules and regulations.
"Backbone Infrastructure" has the meaning given in Recital V.
"Business Day" means a day on which the offices of the City are open to the
public for business.
"Casualty" means any damage or destruction to the Project in excess of One
Hundred Thousand Dollars ($100,000), which amount shall be adjusted in accordance with
increases in the "Consumer Price Index - Seasonally Adjusted U.S. City Average for All Items
for All Urban Consumers (1982-84 = 100)" (hereinafter, "CPI -U"), as published in the Monthly
Labor Review by the Bureau of Labor Statistics of the United States Department of Labor. In
the event the CPI -U is discontinued, the "Consumer Price Index - Seasonally Adjusted U.S. City
Average for all Items for Urban Wage Earners and Clerical Workers (1982-84 = 100)"
(hereinafter, "CPI -W"), published in the Monthly Labor Review by the Bureau of Labor
Statistics of the United States Department of Labor, shall be used for making the computation.
In the event the Bureau of Labor Statistics shall no longer maintain such statistics on the
purchasing power of the U.S. consumer dollar, comparable statistics published by a responsible
financial periodical or recognized authority shall be used for making the computation.
"CEQA" means the California Environmental Quality Act (Public Resources
Code Section 21000 et seq.) and all relevant state and local guidelines in connection therewith.
"City" means the City of Alameda, California, a municipal corporation. Those
acting on behalf of the City may include the City Council, the City Planning Board, the City
Manager and the City's boards, commissions, departments, employees and consultants.
designee.
"City Council" means the Alameda City Council.
"City Event of Default" has the meaning given in Section 14.3.
"City Manager" means the Alameda City Manager or the City Manager's
"City Released Parties" has the meaning given in Section 4.6.
"Closing" means the close of escrow through which the City will convey its fee
estate or any portion thereof in each Phase of the Property to the Developer.
"Commencement of Construction or Commenced" shall mean the performance
of any work on any Phase of Vertical Improvements on the Property including clearing, grading,
or other preliminary site work.
"Completion Assurances" means any payment and performance bonds, labor and
materials bonds, or completion guarantees from a Developer Affiliate or other persons or
entities, irrevocable letters of credit, or other legal instruments providing assurances and
remedies for the completion of any Sub -Phase of Vertical Improvements by the Developer
Affiliate.
"Contractors" means, collectively, the General Contractor and any other
contractors or subcontractors retained directly or indirectly by a Developer Affiliate, the General
Contractor, or any tenant in connection with the construction of any Sub -Phase of the Vertical
Improvements, including the initial tenant improvements within the Project.
"CPI Increase" means increases in the "Consumer Price Index - Seasonally
Adjusted U.S. City Average for All Items for All Urban Consumers (1982-84 = 100)"
(hereinafter, "CPI -U"), as published in the Monthly Labor Review by the Bureau of Labor
Statistics of the United States Department of Labor. In the event the CPI -U is discontinued, the
"Consumer Price Index - Seasonally Adjusted U.S. City Average for all Items for Urban Wage
Earners and Clerical Workers (1982-84 = 100)" (hereinafter, "CPI -W"), published in the
Monthly Labor Review by the Bureau of Labor Statistics of the United States Department of
Labor, shall be used for making the computation.
"Day" means calendar day unless otherwise specified.
"DDA Memorandum" means the memorandum of this Agreement, substantially
in the form of the attached Exhibit F, to be recorded as provided in Section 1.1.
"Density Bonus Regulations" means City of Alameda Ordinance 3012, set forth
in Section 30-17 (Density Bonus Regulations) of Chapter XXX (Development Regulations) of
the Municipal Code.
"Developer" means collectively, MidPen Housing Corporation, a California
nonprofit public benefit corporation, Alameda Point Collaborative, a California nonprofit public
benefit corporation, Building Futures With Women and Children, a California nonprofit public
benefit corporation, and Operation Dignity, a California nonprofit public benefit corporation or
any successor permitted pursuant to the terms of this Agreement.
"Developer Affiliate" means for each Phase, a limited partnership in which the
managing general partner is a limited liability company in which (1) MidPen Housing
Corporation or an affiliate in which MidPen Housing Corporation has a Controlling Interest is a
member/manager and (2) one or more of the other Collaborating Partners or an affiliate in which
the Collaborating Partner has a Controlling Interest is also a member/manager.
"Developer Event of Default" has the meaning given in Section 14.4.
"Development Agreement" means that certain development agreement between
the City and the Developer pursuant to Government Code Section 65864.
"Development Costs" has the meaning set forth in Section 2.3.
"Development Plan" means the plan setting forth the parameters of the Project
approved by the Planning Board on September 25, 2017, consistent with the Alameda Municipal
Code Section 30-4.13 0), the Planning Documents, and the Main Street Neighborhood Plan
attached as Exhibit H hereto.
"DIR" means the California Department of Industrial Relations.
"EDC Agreement" means the Memorandum of Agreement For the Conveyance
of Portions of the Naval Air Station Alameda from the United States of America to the Alameda
Reuse and Redevelopment Authority, dated as of June 6, 2000, as amended.
"Effective Date" has the meaning set forth in Section 1.1.
"EIR" has the meaning set forth in Recital I.
"ENA" means the Exclusive Negotiation Agreement entered into by the City and
the Developer as of December 15, 2015, as amended December 7, 2016.
"Encumbrance Release" means releases for any encumbrances on the
Collaborating Partner's Existing Structures or the leaseholds created by the Existing Leases.
"Escrow Holder" means the Pleasanton, California office of First American Title
Insurance Company, or such other title company or qualified escrow holder upon which the
Parties may subsequently agree, with which an escrow shall be established by the Parties to
accomplish the Closing as provided in Article 4 of this Agreement.
"Estoppel Certificate of Completion" means a certificate defined in Section 8.4.
"Existing Lease" means those certain leases between a Collaborating Partner, the
City and the County for portions.
"Financing Plan" shall mean the Project Financing Plan, as updated by the Phase
Updates as such terms are defined in Section 3.1.
"General Contractor" means a licensed and experienced general contractor
approved by the City pursuant to Section 5.4 and with which the Developer enters into the
Construction Contracts for construction of the Project.
"Hazardous Materials" means any flammable explosives, radioactive materials,
hazardous wastes, petroleum and petroleum products and additives thereof, toxic substance or
related materials, including without limitation, any substances defined as or included within the
definition of "hazardous substances," "hazardous wastes," "hazardous materials," or "toxic
substances" under any applicable federal, state or local laws, ordinances or regulations.
"Hazardous Material Delay" means delay caused by (1) the requirement by an
environmental regulatory agency to perform investigation or remedial action beyond the
segregation, characterization, and proper disposal (including reuse) required by any applicable
Site Management Plan for any Hazardous Materials (A) not previously identified at the Property
(based on information included in the Hazardous Materials Documents), (B) previously
identified at the Property, but that are encountered in a previously unidentified location or in
concentrations in excess of those previously identified (each based on information included in
the Hazardous Materials Documents), except to the extent the Hazardous Materials are
associated with an open Petroleum Program site (which are addressed in clause (2) below), or
(C) encountered in the construction of any portion of the Infrastructure Package located outside
of the Property boundaries, except to the extent the Hazardous Materials are associated with OU-
2C's Industrial Waste Line or Storm Drain Lines A, B, or C; (2) the requirement by an
environmental regulatory agency to perform investigation or remedial action beyond the
preparation of work plans for additional sampling or investigation, the implementation of such
approved work plans and the preparation of closure reports necessary to address or obtain closure
for non-CERLCA Hazardous Materials located at the Property to the extent such investigation or
remedial action is necessary to permit the land uses identified in the Development Plan; or (3)
perform investigation or remedial action for Hazardous Materials that are the result of a
Regulatory Reopener.
"Hazardous Materials Laws" means any applicable federal, state or local laws,
ordinances, or regulations related to any Hazardous Materials.
"Incidental Migration" means the non -negligent activation, migration,
mobilization, movement, relocation, settlement, stirring, passive migration, passive movement,
and/or other incidental transport of Hazardous Materials.
"Inclusionary Housing Ordinance" means City of Alameda Ordinance 2926, set
forth in Section 30-16 (Inclusionary Housing Requirements for Residential Projects) of Chapter
XXX (Development Regulations) of the Municipal Code.
"Indemnification Obligations" has the meaning given in Section 12.3.
"Indemnified Parties" means, collectively, the City, its elected and appointed
officials, board members, commissions, officers, employees, attorneys, agents, volunteers and
their successors and assigns.
"Land Payment" has the meaning given in Section 2.1.
"Major Milestone Dates" means the Outside Phase Closing Dates and the
Vertical Improvement Completion Dates set forth in the Milestone Schedule.
"Market Rate Developer" means the market rate developer selected to develop
the property adjacent to the RESHAP development area.
"Milestone Schedule" means the schedule for performance of various tasks and
obligations under this Agreement that is attached as Exhibit G, and as may be modified from
time to time pursuant to Section 1.5.
"Mitigation Measures" means the mitigation measures set forth in the Mitigation
Monitoring and Reporting Program that is attached as Exhibit E.
"Mitigation Monitoring and Reporting Program" or "MMR Program" has the
meaning set forth in Recital CC and is attached as Exhibit E.
"Operating Memorandum" has the meaning given in Section 15.16.
"Outside Phase Closing Date" has the meaning given in Section 4.2.
"Permitted Exceptions" has the meaning given in Section 4.5(a).
"Phasing Plan" means the Phasing Plan attached as Exhibit C.
"Pollution Liability Insurance Policy" has the meaning given in Section 13.7.
"Preliminary Title Report" means the preliminary title report for the Property
prepared by the Escrow Holder.
"Project" means the improvements to be constructed and developed by the
Developer in accordance with this Agreement. The proposed Project is generally described in
Recitals T, and will be more specifically set forth and depicted in the Development Plan and the
Approved Construction Documents.
"Property" has the meaning given in Recital N. and is more particularly
described in the attached Exhibit A, and shown on the map of the Property attached hereto as
Exhibit B.
"Quitclaim Deed" means the quitclaim deed by which the City will convey its fee
estate in the Property to the Developer at the Closings. A form of the Quitclaim Deed is attached
to this Agreement as Exhibit I.
"Renewed Hope Settlement Agreement" means that certain Settlement
Agreement dated as of March 20, 2001 related to the Renewed Hope Housing Advocates and Arc
Ecology v. City of Alameda, et al.
"Residential Units" has the meaning given in Recital T.2.
"Security Financing Interest" has the meaning given in Section 10.1.
"Supplemental Approvals" means collectively the following City approvals
related to and necessary for development of the Vertical Improvements on the applicable Phase
of the Property consistent with this Agreement:
design review approval for the improvements included in the applicable
Phase;
a building permit;
will serve letters or other contracts from the utility companies providing
utility services to the Property demonstrating that utility service is available for the applicable
Phase; and
"Term" has the meaning given in Section 1.2.
"Title Policies" has the meaning given in Section 4.7.
"Transfer" has the meaning given in Section 9.1.
"TDM Compliance Strategy" has the meaning given in Section 8.14.
"Vertical Improvements" shall mean for a particular Phase, the buildings and
other improvements specified for such Phase in the Development Plan.
"Vertical Improvement Construction Contracts" means the Construction
Contract between the Developer and the General Contractor for construction of the Sub -Phase of
the Vertical Improvements, as submitted by the Developer and approved by the City pursuant to
Section 5.4
Exhibits. The following exhibits are attached to (or upon preparation will be attached to)
and incorporated into this Agreement:
Exhibit A Legal Description of the Property
Exhibit B Map of the Property
Exhibit C Phasing Plan
Exhibit D-1 Backbone Infrastructure
Exhibit D-2 Backbone Infrastructure Phasing Map
Exhibit E Mitigation Monitoring and Reporting Program and Environmental
Checklist
Exhibit F
Form of DDA Memorandum
Exhibit G
Milestone Schedule
Exhibit H
Development Plan
Exhibit I
Form of Quitclaim Deed
Exhibit J
TDM Compliance Strategy
Exhibit K
City Regulatory Agreement
Exhibit L
General Assignment
Exhibit M
Bill of Sale
Exhibit N
City Disclosure Documents
Exhibit 0-1
Notice of City Release of Environmental Claims
Exhibit 0-2
Notice of Developer Release of Environmental Claims
Exhibit P
List of Navy Quitclaim Deeds and CRUPs
Exhibit Q
Release and Termination of Lease
Exhibit R
Site Management Plan
[The Remainder of this Page is Intentionally Left Blank]
In WITNESS WHEREOF, the Parties have signed this Disposition and Development Agreement
on the dates indicated below.
CITY OF ALAMEDA
Elizabeth Warmerdam
Acting City Manager
Date:
Attest: Recommended for Approval:
Lara Weisiger, City Clerk Jennifer Ott, Director, Base Reuse and
Transportation Planning
Approved as to Form:
Andrico Q. Penick
Chief Real Estate Counsel
Authorized by City Council Ordinance No.
Signatures continue on next page
MidPen Housing Corporation, a California nonprofit public benefit corporation
By:
Name:
Title:
By:
Name:
Title:
Alameda Point Collaborative, a California nonprofit public benefit corporation
Building Futures with Women and Children, a California nonprofit public benefit
corporation
By:
Name:
Title:
By:
Name:
Title:
Operation Dignity, a California nonprofit public benefit corporation
Exhibits on file in the City Clerk's Office:
Exhibit A Legal Description of the Property
Exhibit B Map of the Property
Exhibit C Phasing Plan
Exhibit D-1 Backbone Infrastructure
Exhibit D-2 Backbone Infrastructure Phasing Map
Exhibit E Mitigation Monitoring and Reporting Program and Environmental Checklist
Exhibit F Form of DDA Memorandum
Exhibit G
Milestone Schedule
Exhibit H
Development Plan
Exhibit I
Form of Quitclaim Deed
Exhibit J
TDM Compliance Strategy
Exhibit K
City Regulatory Agreement
Exhibit L
General Assignment
Exhibit M
Bill of Sale
Exhibit N
City Disclosure Documents
Exhibit 0-1
Notice of City Release of Environmental Claims
Exhibit 0-2
Notice of Developer Release of Environmental Claims
Exhibit P
List of Navy Quitclaim Deeds and CRUPS
Exhibit Q
Release and Termination of Lease
Exhibit R
Site Management Plan
I, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by the Council of the City of Alameda on the 5th day of
June, 2018, by the following vote to wit:
AYES: Councilmembers; Ezzy Ashcraft, Matarrese, Oddie, Vella and
Mayor Spencer — 5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official
seal of said City this 6th day of June, 2018.
Lara Weisiger, Ci Jerk
City of Alameda
anet
City Kern, City Atforney
Alameda