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Ordinance 3276CITY OF ALAMEDA ORDINANCE NO. 3276
New Series
APPROVING A DEVELOPMENT AGREEMENT BY AND BETWEEN
THE CITY OF ALAMEDA AND BOATWORKS, LLC GOVERNING THE
BOATWORKS PROJECT FOR REAL PROPERTY LOCATED AT 2229
-2235 CLEMENT AVENUE
WHEREAS, in order to strengthen the public planning process, encourage private
participation in comprehensive planning and reduce the economic costs and risk of
development, the Legislature of the State of California enacted Section 65864 et seq. of
the Government Code (the "Development Agreement Legislation") which authorizes a
City and a developer having a legal or equitable interest in real property to enter into a
binding, long-term development agreement, establishing certain development rights in
the property; and
WHEREAS, pursuant to Government Code Section 65864, the City has adopted
rules and regulations establishing procedures and requirements for consideration of
development agreements, which procedures and requirements are contained in Alameda
Municipal Code Chapter XXX, Article VII, Code Sections 30-91 thru 30-95 (the "City
Development Agreement Regulations"); and
WHEREAS, Boatworks, LLC owns approximately 9.48 acres of real property
located at the northwest corner of the intersection of Oak Street and Clement Avenue
with an address of 2229-2235 Clement Avenue (APN 071-0290-001-00 and 071-0289-
005); and
WHEREAS, the City is desirous of advancing the socioeconomic interests of the
City and its residents by promoting the productive use of underdeveloped property and
encouraging quality development and housing opportunities, thereby enhancing housing
opportunities for residents and expanding the City•s property tax base; and
WHEREAS, the City is also desirous of establishing certainty for the future
development of the property which will advance the planning objectives of, and provide
benefits to the City; and
WHEREAS, the City has determined that by entering into this Development
Agreement: (1) the City will ensure the productive use of underdeveloped property and
foster orderly growth and quality development in the City; (2) development will proceed in
accordance with the goals and policies set forth in the City of Alameda General Plan and
will implement the City•s stated General Plan policies; (3) the City will receive substantially
increased property tax and sales tax revenues; and (4) the City will benefit from increased
housing opportunities for residents of the City created by the housing development within
the Project; and
WHEREAS, the terms and conditions of this Development Agreement have
undergone extensive review by the City, the Developer and their respective legal counsel;
and
WHEREAS, the Planning Board and the City Council at publicly noticed meetings
found the provisions of the Development Agreement to be consistent with the City
General Plan, and in conformance with the Development Agreement Legislation and the
City Development Agreement Regulations; 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
this Development Agreement; and ·
WHEREAS, the Developer proposes to develop the Property into a transit-oriented
destination, comprised of residential mixed use with up to 182 housing units and provide
approximately 1 .5 acres of publicly accessible waterfront open space; and
WHEREAS, on March 23, 2020, the Alameda Planning Board conducted a duly
noticed public hearing on this Development Agreement in accordance with Government
Code section 65867 and the City Development Agreement Regulations; and
WHEREAS, on April 7, 2020, the City Council conducted a duly noticed public
hearing on this Development Agreement in accordance with Government Code section
65867 and the City Development Agreement Regulations; and
WHEREAS, the City Council finds that, based on substantial evidence in the
record, the potential environmental impacts of the project have been evaluated and
disclosed pursuant to CEQA. On October 5, 201 0, by Resolution No. 14494, the City of
Alameda certified an EIR in compliance with CEQA that evaluated the environmental
impacts of the development of 242 residential units on the property. The City Council
finds that, based on substantial evidence in the record, no further environmental review
is required for the proposed project as provided by Section 15162 of the California
Environmental Quality Act Guidelines because neither the project, nor the circumstances
surrounding the project, would result in any new or more severe significant impacts to the
environment.
NOW THEREFORE, BE IT ORDAINED by the City Council of the City of Alameda
that:
Section 1.
In accordance with Development Agreement Legislation and the City Development
Agreement Regulations, the City Council hereby finds the Development Agreement to be
consistent with the City General Plan, and approves Development Agreement DA-__
for the property located at 2229-2235 Clement Avenue, the form of which shall be
substantially as attached hereto as Exhibit A, and the City Manager is authorized to sign
it on or after the effective date of this Ordinance.
Section 2.
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 3.
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.
Attest:
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Attorney
City of Alameda
2263 Santa Clara Avenue, Room 280
Alameda, CA 94501
EXHIBIT A
DA ·-----DEVELOPMENT AGREEMENT
BOATWORKS PROJECT
This Development Agreement ("Development Agreement") is entered into by and
between the City of Alameda, a municipal corporation ("City"), and Boatworks LLC, a limited
liability company ("Developer") regarding the Boatworks project. City and Developer are each
a "Party" and collectively are the "Parties".
RECITALS
This Development Agreement is based on the following facts, understandings and
intentions of City and Developer:
A. In order to strengthen the public planning process, encourage private participation
in comprehensive planning and reduce the economic costs and risk of development, the
Legislature of the State of California enacted Section 65864 et seq. of the Government Code
("Development Agreement Legislation"), which authorizes City and a developer having a legal
or equitable interest in real property to enter into a binding development agreement, establishing
certain development rights in the property.
B. Pursuant to Government Code Section 65864, City has adopted rules and
regulations establishing procedures and requirements for consideration of development
agreements, which procedures and requirements are contained in Alameda Municipal Code
("AMC") Sections 30-91 through 30-95 ("City Development Agreement Regulations"). This
Development Agreement has been processed in accordance with the City Development
Agreement Regulations.
C. Developer owns approximate! y 9.4 acres of real property commonly known as
Boatworks, located at 2229-2235 Clement Avenue, City of Alameda, County of Alameda (APNs
071-0289-005-00 and 071-0290-001), as more specifically described in Exhibit A, attached
hereto and incorporated herein ("Boatworks Parcel" or "Property").
D. Developer proposes to develop the Property with a 182-unit .residential housing
development, including 21 deed-restricted affordable units, and to provide public access to
waterfront open space on an approximately 2 acre area of the Property, which shall be publicly
accessible from dawn to dusk, on the Property ("Project").
E. To resolve certain legal disputes regarding the Project, City and Developer
entered into that certain Settlement Agreement dated March 12, 2020, 2020 ("2020 Settlement
Agreement").
F. The City examined the environmental effects of the development of the Project in
an Environmental Impact Report ("EIR") prepared and certified pursuant to the California
Environmental Quality Act ("CEQA").
G. On March 23, 2020, the Planning Board conducted a duly noticed public hearing
and recommended for approval Tentative Map Tract 8060 (PLN 20-0118), Density Bonus
Application (PLN 20-0119), Development Plan (PLN 20-0120), and Open Space Design Review
(PLN 20-0121) for the Project.
H. On April 7, 2020, the City Council conducted a duly noticed public hearing and
approved Tentative Map Tract 8060, Density Bonus Application, Development Plan, and Open
Space Design Review for the Project.
I. City is desirous of advancing the socioeconomic interests of City and its residents
by promoting the productive use of underdeveloped property and encouraging quality
development and economic growth, thereby enhancing employment opportunities for residents
and expanding City's property tax base. City is also desirous of gaining the Public Benefits
described in Section 5, some of which are in addition to those dedications, conditions and
exactions required by laws or regulations and as set forth in this Development Agreement, and
which advance the planning objectives of, and provide benefits to, City.
J. This Development Agreement will eliminate uncertainty regarding Project
Approvals (as defined in section 4 below), thereby encouraging planning for, investment in and
commitment to use and development of the Property. Continued use and development of the
Property in accordance with this Development Agreement is anticipated to, in turn, provide
substantial benefits and contribute to the provision of needed infrastructure for area growth,
thereby achieving the goals and purposes for which the state enacted the Development
Agreement Legislation.
K. By entering into this Development Agreement: (1) City will ensure the productive
use of underdeveloped property and foster orderly growth and quality development in City; (2)
development will proceed in accordance with the goals and policies set forth in the City of
Alameda General Plan ("General Plan") and will implement City's stated General Plan policies;
(3) City will receive substantially increased tax revenues; and (4) City will receive the public
benefits provided by the Project for the residents of City. Entering into this Development
Agreement will also contribute to final resolution to the legal disputes underlying the 2020
Settlement Agreement.
L. The terms and conditions of this Development Agreement have undergone
extensive review by City, Developer, and their respective legal counsel. The Planning Board,
following a duly noticed public hearing held on March 23, 2020, determined that the
Development Agreement is consistent with the objectives, policies, general land uses and
programs specified in the General Plan, and is compatible with applicable regulations pertaining
to the use of land. In adopting its Resolution, the Planning Board reviewed and heard the report
of City staff on Developer's application for this Development Agreement and considered all
other evidence heard and submitted at the public hearing, including the matters to be considered
pursuant to the City Development Agreement Regulations, in recommending to the City Council
the adoption of a development agreement.
M. On April 7, 2020, the City Council, following a duly noticed public hearing, and
after due review of and report on Developer's application for this Agreement by City staff,
consideration of the Planning Board's recommendations thereon, all other evidence heard and
submitted at such public hearing, after compliance with CEQA and all other matters considered
by the Planning Board, including the matters to be considered pursuant to the City Development
Agreement Regulations, considered and found that approval of the Development Agreement is in
compliance with CEQA and found and determined that the Development Agreement is
consistent with the General Plan and other regulations prescribed for the use of land, and
introduced the ordinance approving this Development Agreement ("Ordinance"). On
________ , 2020, the City Council adopted the Ordinance enacting this Development
Agreement.
NOW, THEREFORE, pursuant to the authority contained in the Development Agreement
Legislation and the City Development Agreement Regulations, and in consideration of the
foregoing Recitals and the mutual covenants and promises of the Parties herein contained, the
amount and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. The Property. The Property which is the subject of this Development Agreement is
described in Recital C and more particularly in Exhibit A hereto.
2. The Project. Developer is authorized to develop and use the Property for a 182-unit,
residential housing development, including 21 deed-restricted affordable units, and to provide
public access to improved waterfront open space on an approximately 2 acre area of the
Property, which shall be publicly accessible during daylight hours, and other improvements in
conformance with the Project Approvals, as defined in Section 4.
3. Effective Date; Term. The Effective Date of this Development Agreement is the later of
(a) thirty (30) days after the date the Ordinance approving this Development Agreement is
adopted by the City Council, or (b) if a referendum petition is timely and duly circulated and
filed to challenge the Ordinance, the date the election results on the ballot measure by City voters
approving this Development Agreement are certified by the City Council in the manner provided
by the Elections Code. Not later than five (5) days after the Effective Date, Developer shall
execute and acknowledge this Development Agreement and return the Development Agreement
to City; not later than ten (10) days after the Effective Date, City shall execute and acknowledge
this Development Agreement; and upon receipt of such executed and acknowledged
Development Agreement, Developer shall cause this Development Agreement to be recorded in
the Official Records of the County of Alameda ("Official Records") as provided in Government
Code Section 65868.5 and Section 30-94.4 of the City Development Agreement Regulations.
a. Term. The term of this Development Agreement is fifteen (15) years, beginning
on the Effective Date, and shall expire on of the calendar year
in which the 15th anniversary of the Effective Date falls, unless sooner terminated
pursuant to the applicable provisions of this Development Agreement. The Term has
been established by the Parties as a reasonable estimate of the time required to
develop the Project and obtain the public benefits of the Project. In establishing and
agreeing to such Term, City has deterniined that the Project Approvals and this
Development Agreement incorporate sufficient provisions to permit City to
adequately monitor and respond to changing circumstances and conditions in granting
permits and approvals and undertaking actions to carry out the development of the
Project.
b. Termination. This Development Agreement shall terminate and be of no further
force and effect on the earliest of (1) the expiration of the Term; (2) the completion of
the Project and all of Developer's obligations in connection therewith; (3) an action to
terminate by the City Council pursuant to Annual Review (see Section 10); (4)
termination or cancellation pursuant to AMC Sections §§30-95.2; 30-94.3; or (5) the
2020 Settlement Agreement terminates and is of no further force and effect.
c. Termination for Default. In the event of a Default by a breaching Party, the
non-breaching Party may terminate this Development Agreement as provided in
Section 15.
c. Subsequent Amendments or Termination. If the Parties amend, modify or
terminate this Development Agreement as herein provided, or as otherwise provided in
the City Development Agreement Regulations (AMC §§ 30-94.3; 95.2), or this
Development Agreement is modified or terminated pursuant to any provision hereof, then
Developer shall, within ten (10) days after such action takes effect, cause an appropriate
notice of such action to be recorded in the Official Records.
d. Effect of Expiration of Term. Except for obligations under this Development
Agreement that survive expiration, accrued obligations of a Party, and obligations to
comply with Project Approvals and other laws, upon expiration of the Term, this
Development Agreement and all of the rights, duties and obligations of the Parties
hereunder shall terminate and be of no further force or effect. The expiration of the Term
shall not affect the effectiveness of the Project Approvals.
4. Project Approvals. Developer has applied for and obtained various environmental and
land use approvals and entitlements related to the development of the Project, as described in this
section. For purposes of this Development Agreement, "Project Approvals" shall mean the
Initial Project Approvals and the Subsequent Approvals (as defined herein). The permitted uses
of the Property, the density and intensity of use, the maximum height and size of proposed
buildings, and provisions for reservation of dedication of land for public purposes shall be those
set forth in the Project Approvals, including this Development Agreement. The Applicable Law
and this Development Agreement shall control the overall design, development, and construction
of the Project, and all on-and off-site improvements and appurtenances in connection therewith,
in the manner specified in this Development Agreement. In the event of any inconsistency
between the Applicable Law and this Development Agreement, this Development Agreement
shall control.
a. The term "Initial Project Approvals" shall mean all of the following approvals,
plans and agreements:
i. CEOA. The documentation prepared under CEQA including the EIR
(State Clearinghouse No. 2009102040), which was recommended for certification
by the Planning Board on June 21, 2010, and certified with findings by the City
Council on October 5, 2010, by Resolution No. 14494 (certifying EIR and
adopting findings and a mitigation monitoring and reporting program).
ii. General Plan. On October 5, 2010, following Planning Board review and
recommendation, and after a duly noticed public hearing, the City Council, by
Resolution No. 14495, adopted General Plan Amendments related to the Project.
111. Density Bonus Application. On April 7, 2020, following Planning Board
review and recommendation, and after a duly noticed public hearing, the City
Council, by Resolution No. , approved the density bonus application
(PLN 20-0119) for the Project.
iv. Open Space Design Review. On April 7, 2020, following Planning
Board review and recommendation, and after a duly noticed public hearing, the
City Council, by Resolution No. , approved the Open Space Design
Review (PLN 20-0121) for the Project.
v. Development Plan. On April 7, 2020, following Planning Board review
and recommendation, and after a duly noticed public hearing, the City Council, by
Resolution No. , approved the Development Plan (PLN 20-0120) for the
Project.
vi. Tentative Map Tract 8060. On April 7, 2020, following Planning Board
review and recommendation, and after a duly noticed public hearing, the City
Council, by Resolution No. , approved Tentative Map Tract 8060 (PLN
20-0118) for the Project.
vii. Development Agreement. On , 2020, following
Planning Board review and recommendation, and after a duly noticed public
hearing, the City Council, by Ordinance No. __ , approved this Development
Agreement and authorized its execution.
b. The term "Subsequent Approvals" shall mean any additional permit or
authorization that is required to develop the Project consistent with the Initial Approvals
and is finally approved by City in accordance with Applicable Law (defined in Section
8). Subsequent Approvals may include, without limitation: subdivision improvement
agreements, infrastructure agreements, right-of-way permits, landscaping plans, final
subdivision map, architectural design review, grading permits, building permits, sewer
and water connection permits, certificates of occupancy, affordable housing agreements,
and encroachment permits. Subsequent Approvals shall not include any substantial
amendment or other change to the Initial Approvals. If Developer submits to the City
any application seeking to substantially amend an Initial Approval, or to obtain an
approval (i.e. formal submission to the City Planning Department, Planning Board, or
City Council of a request for a Development Plan, Tentative Map, zoning change (other
than to R2-PD as provided below), parcel map, general plan amendment, density bonus,
use permit, development agreement, or zoning code text amendment) that is substantially
inconsistent with the Initial Approvals, this shall be considered a serious and substantial
breach unless Developer and City have agreed otherwise in writing, which writing shall
be signed by Developer and the City Manager, and shall be approved as to form by the
City Attorney. At such time as City approves any Subsequent Approval, all the terms
and conditions of this Development Agreement applicable to the Initial Project Approvals
shall apply to the Subsequent Approval, and the Subsequent Approval shall be treated as
a "Project Approval" under this Development Agreement.
5. Public Benefits. In consideration of, and in reliance on, City agreeing to the provisions
of this Development Agreement, Developer will provide the following public benefits, some of
which are over and above those dedications, exactions, and conditions required by laws or
regulations:
a. Provide for the orderly development of the Property and the surrounding
community.
b. Provide public access to waterfront open space on an approximately 2-acre area of
the Property as shown on Tentative Map Tract 8060.
c. Contribute to relieving the housing shortage in the Bay Area.
d. Increase property tax revenue for city and county.
e. Add to City's affordable housing stock.
6. Developer's Obligations. Developer shall timely comply with all requirements of the
Project Approvals and Applicable Law, including without limitation compliance with all
conditions of approval and implementation of all required mitigation measures for the Project,
and shall timely pay to City all Fees (as defined in Section 8 herein and specified in Exhibit B)
that City is authorized to charge.
7. City of Alameda Obligations.
a. No Action to Impede Project Approvals. The City shall take no action nor
impose any condition that would conflict with this Development Agreement or the
Project Approvals. Any action taken or condition imposed shall be deemed to be "in
conflict with" this Agreement or the Project Approvals if such actions or conditions result
in one or more of the circumstances identified in Section 8.i. of this Development
Agreement.
b. Timely Review. City shall reasonably cooperate with Developer to facilitate
prompt and timely review and processing of applications for Subsequent Approvals,
including the timely provision of notice and scheduling of all required public hearings,
and processing and checking of all maps, plans, permits, building plans and specifications
and other plans relating to development of the Project filed by Developer.
c. Processing During Third Party Litigation. The filing of any third party
lawsuit(s) against City or Developer relating to this Development Agreement, the Project
Approvals, Subsequent Approvals, or any other action taken in furtherance of the Project,
including actions related to the Property outside the control of City or Developer, shall
not delay or stop the development, processing, or construction of the Project or the
issuance of Subsequent Approvals, unless the third party obtains a court order preventing
the activity. To the extent such third party litigation does delay or stop processing, the
term of this Development Agreement shall be extended by the period of such delay.
8. Development of the Property.
a. Vested Development Rights. The Property is hereby made subject to the
provisions of this Development Agreement. All development of or on the Property, or
any portion thereof, shall be undertaken only in compliance with Applicable Law as
defined in Section 8.b and this Development Agreement. For the Term of this
Development Agreement, Developer shall have a vested right to develop the Property in
accordance with Applicable Law and this Development Agreement. The Project shall be
subject to all Subsequent Approvals (which, upon final approval, shall be deemed part of
the Project Approvals hereunder).
b. Applicable Law.
i. The rules, regulations, official policies, standards and specifications
applicable to the development of the Property ("Applicable Law") shall be those
set forth in (1) the Project Approvals and, (2) those laws, rules, regulations,
ordinances, resolutions, official policies, standards and specifications adopted by
the City, governing development, permitted uses, building locations, timing of
construction, densities, design, heights, fees, and exactions ("City Laws") that are
in force and effect on the Effective Date to the extent not inconsistent with Project
Approvals, including without limitation the General Plan and Planning and
Zoning Code requirements in effect on the Effective Date. Changes to City Laws
after the Effective Date shall not apply to the Project.
ii. Notwithstanding the foregoing, Applicable Law shall include the
following City Laws as they exist at the time they are applied to the Project and
not as they existed on the Effective Date:
(1) City Laws applicable city-wide that are necessary to protect
persons from a condition dangerous to their health or safety;
(2) If any subsequent environmental review is required for the
Project, any mitigation measures required as part of that review;
(3) City Laws that are:
A. Specifically mandated by or necessary to comply with state
or federal law, or by any regional governmental agency that has
legal authority over City under state law or a joint powers
agreement; or
B. A result of or in response to state or federal law, or regional
agency action, made necessary in order for the City to avoid losing
or not receiving substantial funding or other substantial public
benefits or facilities that would be available to the City only if it
enacts the new or changed City Law; or
C. Specifically mandated by, or necessary for compliance with
or implementation of, the terms of any permit, entitlement or other
authorization necessary for the development of the Property issued
by any federal, state or regional agency; or
(4) Any requirements contained in the California Building Standards
Code, as amended by City in accordance with the California
Health and Safety Code, including requirements of the City of
Alameda Building and Housing Code, Fire Code, Sewer and
Water Code, or other uniform construction codes.
111. Nothing in this Development Agreement shall limit the application of any
state or federal law to the Project, or any requirement of any public agency other
than City, regardless of whether the law or other requirement is in effect on the
Effective Date.
c. Outside Agency Fees. The term "Outside Agency Fees" shall mean monetary
fees or impact fee requirements imposed on the Project by the Alameda Unified School
District, the State of California, or any political subdivision of the State except the City.
Notwithstanding anything to the contrary in this Development Agreement, the Outside
Agency Fees for the Project shall be calculated based on the fee schedules and other fee
requirements in effect at the time the fees are due, whether or not the fees are collected by
City on behalf of the outside agency.
d. Fees. The term "Fees" shall mean monetary fees, exactions, impositions, taxes or
assessments whether established for or imposed upon the Project individually or as a
class of projects, that are imposed by City on the Project in connection with any Project
Approval (including Subsequent Approvals) for any purpose, including, without
limitation, defraying all or a portion of the cost of: processing development applications;
providing public services or constructing facilities; and/or improvement, operation, and
maintenance attributable to the burden created by the Project. City Fees shall not include
any Outside Agency Fees. Notwithstanding anything to the contrary contained in this
Development Agreement:
i. Only the specific Fees (including any applicable inflator) as set forth in
Exhibit F of the 2020 Settlement Agreement and as attached hereto as Exhibit B
shall apply to the Project. The base year for any Fee inflator shall be 2020.
ii. Except as provided in section 8.d.i, above, no change to any Fee resulting
in an increase in dollar amounts charged to the Project by City that is adopted
after the Effective Date shall apply to the Project. No new Fee not listed on
Exhibit B shall apply to the Project during the Term of this Development
Agreement.
iii. City shall apply no new, additional, or further charges, taxes, fees,
assessments, or levies to the Project during the Term of this Development
Agreement except as specifically allowed herein.
iv. Developer shall have the right to elect to have future changes to Fees
apply to the Project by giving City written notice of its election.
e. Development Timing. Developer shall use its best efforts to commence
development, and to complete development of the Project in a regular, progressive and
timely manner in accordance with the provisions and conditions and within the Term of
this Development Agreement and the Project Approvals.
f. Life of Project Approvals. The term of any and all Project Approvals that would
otherwise expire before the expiration of the Term of this Development Agreement shall
automatically be extended to coincide with the Term of this Development Agreement;
provided, however, that the terms of building permits and variances shall be limited to the
time period permitted by Applicable Law; and provided further that any extension under
this paragraph shall automatically terminate upon termination of this Agreement.
g. Subsequent Project Approvals. Developer and City acknowledge and agree that
Developer intends to submit applications for Subsequent Approvals, as defined herein. In
connection with any Subsequent Approval, City shall conduct its review and exercise its
discretion in accordance with Applicable Law, the Project Approvals, and as provided in
the Development Agreement.
h. Developer's Right to Rebuild. City agrees that Developer may renovate or
rebuild portions of the Project at any time within the Term of this Development
Agreement should it become necessary due to natural disaster or other casualty, or
changes in seismic requirements. Such renovations or reconstruction shall be processed
as a Subsequent Approval. Any such renovation or rebuilding shall be subject to all
design, density and other limitations and requirements imposed by this Development
Agreement and shall comply with the Project Approvals and/or Applicable Law.
i. Conflicting City Enactments. For purposes of this Development Agreement, the
term "Conflicting City Enactment" means a new or amended City Law that is enacted
or amended after the Effective Date and conflicts with the Project Approvals or reduces
the development rights or assurances provided by this Development Agreement. Without
limiting the generality of the foregoing, a City Law enacted or amended after the
Effective Date of this Development Agreement shall be deemed to conflict with this
Development Agreement or reduce the development rights or assurances provided by this
Development Agreement if it would cause any of the following to occur if applied to the
Project:
i. Limit or reduce the number of residential units or other building types
permitted to be developed on the Property;
ii. Limit or reduce the square footage of residential or other development
permitted to be developed on the Property;
111. Limit or reduce the height, bulk, massing, or other intensity of the Project
or of any building within the Project;
iv. Change any land use designation or permitted use of the Property unless
otherwise authorized by the Project Approvals;
v. Limit or control the availability of public utilities, services or facilities or
any privileges or rights to public utilities, services, or facilities (for example,
water rights, water connections or sewage capacity rights, sewer connections, etc.)
for the Project;
vi. Materially change, limit, or control the location, configuration or size of
lots, buildings, structures, or other improvements of the Project in a manner that is
inconsistent with or more restrictive than the limitations included in or imposed
by the Project Approvals, Applicable Law, or this Development Agreement;
vii. Limit or control the rate, timing, phasing or sequencing of the approval,
development, or construction of all or any part of the Project in any manner,
except as set forth in this Development Agreement, Applicable Law, or the
Project Approvals; or
vn1. Impose on the Project or Developer any fees or exactions or costs other
than those permitted by this Development Agreement and the Project Approvals.
j. Developer Right to Apply Future Changes. Developer shall have the right to
elect to have future changes to Applicable Law that conflict with this Development
Agreement apply to the Project by giving City written notice of its election to have a
future change to Applicable Law apply, in which case, such future change to Applicable
Law shall be deemed an Applicable Law.
k. Compliance with Applicable Federal and State Laws. Developer shall
comply, at no cost to the City, with all applicable federal or state laws relating to the
Project or the use, occupancy or development of the Property under this Development
Agreement. Pursuant to Section 65869.5 of the Development Agreement Legislation, in
the event that state or federal laws or regulations enacted after the Effective Date
preclude or prevent compliance with one or more provisions of this Development
Agreement, such provisions shall be modified or suspended as may be necessary to
comply with such state or federal laws or regulations.
1. Other Government Permits, Fees and Approvals. City shall cooperate with
Developer, to the extent appropriate and as permitted by law, in Developer's efforts to
obtain, as may be required, permits and approvals from other governmental or quasi-
governmental entities.
9. Initiatives and Referenda. If any City Law enacted or imposed by a citizen-sponsored
initiative or referendum is a Conflicting City Enactment, such City Law shall not apply to the
Property or Project during the Term.
10. Annual Review. Developer shall notify the City in writing at least forty-five (45) days
prior to the anniversary date of the Effective Date requesting an annual review of the
Development Agreement ("Annual Review"). The periodic review of the Development
Agreement shall be made at least every twelve {12) months, consistent with Government Code
section 65865.1 and AMC Section 30-95.1. See Exhibit C (AMC 30-95.1). At least thirty {30)
days prior to each anniversary of the Effective Date during the Term, Developer shall submit a
written report to City outlining its efforts towards good faith compliance with the terms of this
Development Agreement. Notwithstanding any other provision of this Agreement, if the
Planning Board finds and determines on the basis of substantial evidence that the applicant has
not complied in good faith with the terms and conditions of the agreement during the period
under review, the Planning Board shall forward its recommendations to the City Council and the
Council may modify or terminate this Development Agreement in accordance with Alameda
Municipal Code Section 30-95.2.
11. Amendments. The Development Agreement may be amended by the Parties, upon
mutual agreement, consistent with the procedures set forth in Government Code section 65868
and AMC Section 30-94.3. See Exhibit D {AMC 30-94.3). Except as may otherwise be
required by law or court order, all amendments to this Development Agreement shall be (i) in
writing, (ii) approved by the City Council in its sole discretion, by ordinance, at a public meeting
or alternatively approved by the City Manager pursuant to Section 11.a below, (iii) signed by
both Parties, and (iv) entitled "Development Agreement-Boatworks, Amendment N" where
"N" is the next number in order.
a. Ministerial Amendments. Without further action by the City Council, the City
Manager shall have the authority, but not the obligation, to take the following action in
his or her sole discretion:
i. Extend or adjust the deadline for City or Developer to complete any
obligation under this Development Agreement (except extending the Term of this
Development Agreement) for up to one (1) year upon any terms or conditions
he/she deems appropriate using his/her reasonable discretion.
ii. To consent, on behalf of City, to a Transfer pursuant to Section 12 herein,
and to amend this Development Agreement to correct! y identify the new
developer.
b. Nothing in this Section shall be construed as to require the City Manager to
exercise his/her discretion or to prevent the City Manager from seeking City Council
review and approval of an amendment that might otherwise fall within the City
Manager's authority.
12. Transfer and Assignment. "Transfer" shall be defined .as the sale, transfer, ground
lease, or assignment of all or a portion of the Property, creation of a joint venture or partnership,
or assignment of Developer's rights under this Development Agreement. No Transfer shall
require the amendment of this Development Agreement, provided that such Transfer is
completed in conformance with the 2020 Settlement Agreement and the following requirements:
a. Right to Transfer Property. Developer agrees to and accepts the restrictions on
its right to Transfer its interest under this Development Agreement with respect to the
Property, or any portion thereof, as set forth in this Section 12 as reasonable and as a
material inducement to City to enter into this Development Agreement. Developer shall
have the right to Transfer the Property in whole or in part (provided that no such partial
Transfer shall violate the provisions of the Subdivision Map Act) to any person,
partnership, joint venture, firm, company or corporation (any of the foregoing, an
"Assignee") subject to the prior written consent of City.
i. Permitted Transfers. Notwithstanding the foregoing, the following
Transfers of interests in the Property, shall be permitted without seeking or
receiving consent:
(1) Any transfer creating a security financing;
(2) Any transfer resulting from the foreclosure of a security financing
interest or the granting of a deed in lieu of foreclosure of a security
financing interest.
(3) Any transfer due to the death or incapacity of an individual.
(4) Any transfer to an entity in which Developer has the power to
direct the affairs or management of the proposed transferee, whether by
contract, other governing documents, or operation of Law or otherwise.
(5) Any transfer into or out of a living trusts for purposes of estate
planning.
(6) Any transfers between or among existing members of Developer.
b. City Consent. City's consent to a Transfer or assignment under Section 12.a
shall not be unreasonably withheld, delayed or conditioned. City's decision to withhold
consent must be based upon its determination, in its reasonable discretion, that the
Assignee is not qualified to develop the Project or is unable to perform the obligations of
Developer under this Development Agreement. Any such consent shall be in a writing
signed by the City Manager and approved as to form by the City Attorney.
c. Assignment of Interest Under Development Agreement. The sale, transfer,
lease or assignment of any right or interest under this Development Agreement shall be
made only together with the sale, transfer, ground lease or assignment of all or a part of
the Property. Assignee shall succeed to the rights, duties and obligations of Developer
only with respect to the parcel or parcels of the Property so purchased, transferred,
ground leased or assigned, and Developer shall continue to be obligated under this
Development Agreement with respect to (i) all portions of the Property in which
Developer retains an interest, and (ii) except to the extent Developer has obtained a
written release from City pursuant to Section 13.e, all portions of the Property retained by
Developer and all conditions of approval under the Project Approvals, including without
limitation the dedication and installation of all required infrastructure improvements.
d. Notice of Assignment; Assumption Agreement. Concurrently with any sale,
transfer, ground lease or assignment of the Property, Developer shall (i) notify City in
writing of such sale, transfer or ground lease; and (ii) Developer and Assignee shall have
entered into a written assignment and assumption agreement, in form reasonably
acceptable to and approved by the City Attorney, pursuant to which Assignee shall
assume and succeed to the rights, duties and obligations of Developer with respect to the
parcel or parcels of the Property so purchased, transferred, ground leased or assigned.
Upon request of Developer or Assignee, and following compliance with the notification
provisions above, City shall provide Assignee with an estoppel certificate in accordance
with Section 13.
e. Release of Transferring Developer. Except with respect to a permitted Transfer
and assignment under Section 12.a or 12.b, notwithstanding any sale, transfer, or
assignment of all or a portion of the Property, Developer shall continue to be obligated
under this Development Agreement as to all or the portion of the Property so transferred,
and from any duty to comply with the conditions of approval per the Project Approvals,
unless City is satisfied the Assignee is fully able to comply with Developer's obligations
under this Development Agreement (both financially and otherwise) and Developer is
given a release in writing. Such release shall not extend to any obligations pertaining to
any portion of the Property retained by Developer.
f. Partial Transfer. Notwithstanding any other provision hereof to the contrary, if
Developer only transfers a portion of the Property, then Developer shall continue to be
obligated under this Development Agreement with respect to the balance of the Property
not so transferred.
g. Any Transfer made in contravention of this Section shall void this Development
Agreement, provided that each of the following has occurred: (a) approval and
recordation of the final map for the Project, (b) approval and recordation of the open
space deed restriction for the Project, and (c) approval and recordation of the affordable
housing deed restriction for the Project (collectively, "Assignment Conditions
Precedent").
13. Mortl!aeee Protection. This Development Agreement shall be superior and senior to
any lien placed upon the Property or any portion thereof after the date of recording the
Development Agreement, including the lien of any deed of trust or mortgage ("Mortgage").
Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair
the lien of any Mortgage made in good faith and for value, but all of the terms and conditions
contained in this Development Agreement shall be binding upon and effective against and shall
run to the benefit of any person or entity, including any deed of trust beneficiary or mortgagee
("Mortgagee") who acquires title or possession to the Property, or any portion thereof, by
foreclosure, trustee's sale, deed in lieu of foreclosure or otherwise.
14. Estoppel Certificate. Within thirty (30) days of a written request, either Party shall
execute an estoppel certificate in writing that, to the knowledge of the responding Party as of the
last Annual Review:_ (a) this Development Agreement is in full force and effect and is a binding
obligation of the Parties, (b) this Development Agreement has not been amended or modified
either orally or in writing, or if amended, identifying the amendments, and (c) the requesting
Party is not in Breach in the performance of its obligations under this Development Agreement,
or if in Breach or Default, describe the nature and amount of any such Breach or Default.
15. Remedies for Breach and Default. If a Party is in breach under this Development
Agreement, the non-breaching Party may pursue one or more of the following courses of action:
a. Breach. The failure or delay by either Party to perform any term or provision of
this Development Agreement shall constitute a breach of this Development Agreement.
In the event of an alleged breach of any terms or conditions of this Development
Agreement, the Party alleging such breach shall give the other Party notice in writing, by
certified mail, specifying the nature of the breach and the manner in which said breach or
default may be satisfactorily cured, and the Party in breach shall have forty-five ( 45) days
following such notice ("Cure Period") to cure such breach, except that in the event of a
breach of an obligation to make a payment, the Party in breach shall have ten (10) days to
cure the breach. If the breach is of a type that cannot reasonably be cured within forty-
five (45) days (or ten (10) days in the case of an obligation to make a payment), the
breaching Party shall, within a forty-five (45) day period (or ten (10) day period in the
case of an obligation to make a payment) following notice from the non-breaching Party,
notify the non-breaching Party of the time it will take to cure such breach, which shall be
a reasonable period under the circumstances ("Extended Cure Period"); commence to
cure such breach; and proceed diligently to cure such breach. The Extended Cure Period
shall in no event exceed one hundred twenty (120) days unless otherwise agreed by the
Parties. During the Cure Period or Extended Cure Period, the Party charged shall not be
considered in Default for purposes of termination or institution of legal proceedings; but
the City's right to refuse to issue a permit or Subsequent Approval under Section 15 .c
shall not be limited by this provision. The failure of any Party to give notice of any
breach shall not be deemed to be a waiver of that Party's right to allege that breach or any
other breach at any other time.
b. Default. If City is the breaching Party and has not cured such breach within the
Cure Period or the Extended Cure Period, as applicable, City shall be in default
("Default"), and Developer, as the non-breaching Party, at its option, may terminate the
Development Agreement or institute legal proceedings pursuant to this Development
Agreement and shall have such remedies as are set forth in Section 15 .d below.
Termination shall not relieve Developer of any other obligation, including obligations
under this Development Agreement that survive Termination, accrued obligations under
this Development Agreement, and obligations to comply with Project Approvals and
other laws. If Developer is the breaching Party and has not cured such breach within the
Cure Period or the Extended Cure Period, as applicable, City shall provide written notice,
by certified mail, of the time and place of a City Council hearing on the Default and
proposed termination of the Development Agreement and other information that the City
considers necessary to inform Developer of the nature of the scheduled proceedings, to be
held at least thirty (30) days from the date of the notice. At such hearing, Developer shall
be given an opportunity to be heard. If substantial evidence shows Developer is in breach
of the Development Agreement and has not cured such breach, the City Council shall
determine Developer to be in Default, and City, as the non-breaching Party, at its option,
may terminate the Development Agreement or institute legal proceedings pursuant to this
Development Agreement and shall have such remedies as are set forth in Sections 15 .c
and 15 .d below.
c. Withholding of Permits. In the case of a serious and substantial breach by the
Developer, the City shall have the right to refuse to issue any permits or other approvals
to which Developer would otherwise have been entitled pursuant to this Development
Agreement until such time as the breach determined to be cured by the City or by a final,
non-appealable court order. This remedy is in addition to and shall not limit any actions
that City may take to enforce the conditions of the Project Approvals.
d. Additional Remedies.
i. Additional Developer Remedies. City and Developer agree that in the
event of Default by City, the Parties intend that the primary remedy for Developer
shall be specific performance of this Development Agreement. If City is in
Default, Developer may institute legal action to cure, correct or remedy any
Default, to enforce any covenants or agreements herein, to enjoin any threatened
or attempted violation hereof, or to obtain any other remedies (excluding
monetary damages) consistent with the purpose of this Development Agreement.
Any such legal action shall be brought in the Superior Court for Alameda County,
California. The Parties further acknowledge that City would not have entered into
this Development Agreement had it been exposed to damage claims from
Developer for any breach thereof. As such, the Parties agree that in no event shall
Developer be entitled to recover monetary damages (including but not limited to
actual, consequential, punitive or special damages) against City for breach of this
Development Agreement.
ii. Additional City Remedies. City and Developer agree that in the event of
Default by Developer, the Parties intend that the primary remedy for City shall be
specific performance of this Development Agreement. If Developer is in Default,
City, in addition to any other rights or remedies, may institute legal action to cure,
correct or remedy any Default, to enforce any covenants or agreements herein, to
enjoin any threatened or attempted violation hereof, or to obtain any other
remedies (excluding monetary damages) consistent with the purpose of this
Development Agreement. Any such legal action shall be brought in the Superior
Court for Alameda County, California. If City issues an Approval pursuant to this
Development Agreement in reliance upon a specified condition being satisfied by
Developer in the future, and if Developer then fails to satisfy such condition, City
shall be entitled to specific performance for the purpose of causing Developer to
satisfy such condition.
16. Indemnification. To the maximum extent permitted by law, Developer shall defend,
indemnify, release and hold harmless City and its elected and appointed officials and employees
(the "Indemnified Parties") from and against any Indemnified Claim. "Indemnified Claim"
means any litigation, claim, action or court proceeding brought against any of the Indemnified
Parties, the purpose of which is to attack, set aside, void or annul this Development Agreement
or any portion thereof on any grounds, or which arises out of or in connection with the approval
or enforcement of this Development Agreement. This indemnification shall include, without
limitation, damages, costs, expenses, court awarded attorney fees or expert witness fees that may
be asserted or incurred by the Indemnified Parties, arising out of or in connection with the
approval or enforcement of this Development Agreement. City shall retain the right to approve
legal counsel retained by Developer to defend City against an Indemnified Claim, which
approval shall not be unreasonably withheld. Developer will reimburse the Indemnified Parties,
within thirty (30) days of receiving the evidence that such costs have been incurred, for the
reasonable attorney's fees, expert witness fees, and related costs as the Indemnified Parties may
incur in connection with its or their retention of outside counsel. City shall retain the final right
to approve any and all settlements proposed by Developer.
17. Attorney's Fees. If one of the Parties brings legal action to enforce or defend a
provision of this Development Agreement, then the prevailing Party is entitled to its reasonable
attorney's fees, expert witness fees, and court costs.
18. Third Party Legal Action; Attorney's Fees. If City chooses to defend any third party
claim or suit challenging any action taken by City with regard to any procedure or aspect of
City's approval of the development of the Project, Developer agrees to reimburse City for
attorney's fees, expert witness fees, and related costs as City may incur in connection with its
retention of outside counsel, and for any award of damages, court costs or fees against City. City
has the right to choose and retain such legal counsel as City deems appropriate.
19. Provisions That Survive Termination of this Development Agreement. It is expressly
agreed by the Parties that the following provisions survive the termination or expiration of this
Development Agreement:
Section 15 -Remedies for Default
Section 16-Indemnification
Section 17 -Attorney's Fees, and
Section 18-Third Party Legal Action; Attorney's Fees
20. Waiver of Claims. Developer consents to, and waives any rights it may have now or in
the future, to challenge the legal validity of the application of Applicable Law to the Project or
the Property, or of any conditions or requirements imposed on Developer by the Project
Approvals, including, without limitation, any claim that such terms and conditions constitute an
abuse of discretion, are not within the police power, violate substantive or procedural due
process, deny equal protection of the laws, effect a taking of property without payment of just
compensation, or impose an unlawful tax.
21. Force Majeure. The expiration of this Development Agreement may be extended 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; pandemic; lack of transportation; court order; delays resulting from changes in any
applicable laws, rules, regulations, ordinances or codes; delays resulting from Hazardous
Material Delay (as defined below); 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 Developer and provided further that Developer is actively mounting a defense to such
litigation; inability to secure necessary labor, materials or tools (provided that Developer 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 Developer that
prevents Developer from claiming an extension of time from performing its obligations under ~~
this Development Agreement. The extension of time for force majeure events shall be from the
time Developer provides City with written notice of the event that gave rise to such period of
delay, which notice shall specify the deadlines 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 deadlines (and all subsequent deadlines affected by the
force majeure event) will be adjusted to account for the extension period, provided however
Developer may not request or claim extensions pursuant to this Section for a cumulative period
in excess of five (5) years.
a. "Hazardous Material Delay" means delay caused by the requirement by an
environmental regulatory agency to perform investigation or remedial action beyond the
remediation, segregation, characterization, and proper disposal (including reuse) of any
hazardous materials (a) not previously identified at the Property, (b) previously identified
at the Property, but encountered in a previously unidentified location or in concentrations
in excess of those previously identified.
22. Severability. If any term or provision of this Development Agreement or the application
of any term or provision of this Development Agreement to a particular situation, is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and
provisions of this Development Agreement, or the application of this Development Agreement to
other situations, shall continue in full force and effect unless amended or modified by mutual
consent of the Parties.
23. Recordation; Binding Effect. This Development Agreement shall be recorded in the
Official Records and shall be binding upon and inure to the benefit of successors in interest to
the Parties. Where there is more than one Developer, the obligations are joint and several.
24. Binding Effect; Covenants to Run with the Land. This Development 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 of rights or
obligations under this Development Agreement except as permitted in Section 12. Any reference
in this Agreement to a specifically named Party shall be deemed to apply to any heir,
administrator, executor, successor in interest, or assign of such Party who has acquired an
interest in compliance with the terms of this Agreement or under law. Where there is more than
one Developer, the obligations of Developer are joint and several.
25. Successors and Assigns. Subject to the provisions of Section 12 relating to Transfer, the
terms, covenants, and conditions contained in this Development Agreement shall bind and inure
to the benefit of City, Developer, and their respective successors and assigns; provided, however,
that City shall have no obligation under this Development Agreement to, nor shall any benefit of
this Development Agreement accrue to, any unapproved successor or assign of Developer where
City approval of a successor or assign is required by this Development Agreement, or, after
occurrence of the Assignment Conditions Precedent, where any Transfer voids the Development
Agreement.
. 2'6. Cooperative Drafting. This Development Agreement has been drafted through a
cooperative effort of both Parties, and both Parties have had an opportunity to have the
Development Agreement reviewed and revised by legal counsel of their own choosing. No Party
shall be considered the drafter of this Development Agreement, and no presumption or rule that
an ambiguity shall be construed against the Party drafting the clause shall apply to the
interpretation or enforcement of this Development Agreement.
27. Integration. This Development Agreement and the 2020 Settlement Agreement
constitute in full the final and exclusive understanding and agreement of the Parties and
supersedes all negotiations or previous agreements of the Parties with respect to all or any part of
the subject matter hereof. All waivers of the provisions of this Development Agreement shall be
in writing and signed by Developer and the City Manager and shall be approved as to form by
the City Attorney.
28. No Third-Party Beneficiaries. There are no third-party beneficiaries to this
Development Agreement.
29. 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 Developer, or any successor in
interest, in the event of a City Default.
30. Parties Not Co-Venturers. Nothing in this Development Agreement is intended to or
does establish the Parties as partners, co-venturers, or principal and agent with one another.
31. Time of the Essence. Time is of the essence in this Development Agreement. All
reference to days shall mean calendar days unless otherwise noted. All reference to year shall
mean calendar year unless otherwise noted.
32. Applicable Law and Venue. This Development Agreement shall be interpreted,
construed and enforcement with the laws of the State of California. All rights and obligations of
the Parties under this Development Agreement are to be performed in the City of Alameda in the
County of Alameda and such county shall be the venue for any legal action or proceeding that
may arise out of or be brought in connection with or by reason of this Development Agreement.
33. Signature in Counterparts. This Development Agreement may be executed in duplicate
counterpart originals, each of which is deemed to be an original, and all of which when taken
together shall constitute one and the same instrument.
34. Prevailing Wages. If required by State law and AMC Section 2-67, Developer agrees to
comply with California Labor Code Section 1770 et seq. regarding the payment of prevailing
wages, the training of apprentices and compliance with other applicable requirements for any
work on the Project.
35. Notices. The address of each party for the purpose of all notices permitted or required by
this Development Agreement is as follows:
To City:
With a copy to:
To Developer:
With a copy to:
City of Alameda
Alameda City Hall, Rm. 320
2263 Santa Clara Avenue
Alameda, CA 94501
Attn: City Manager
City of Alameda
Alameda City Hall, Rm. 280
2263 Santa Clara Avenue
Alameda, CA 94501
Attn: City Attorney
Boatworks LLC
c/o Nicoley Collins
6050 Hollis Street
Emeryville, CA 94608
Shona Armstrong
Harper & Armstrong, LLP
1634 Telegraph Avenue, #3
Oakland, CA 94612
The written address of either Party set forth above may be changed by written notice
given to the other Party not less than five (5) days prior to the date such change is to be in effect.
All notices under this Development Agreement shall be in writing, shall be properly addressed
and shall be sent by personal delivery, United States mail (registered, certified, or Express Mail,
return receipt requested and postage prepaid), or by overnight courier delivery service. All such
notices shall be considered delivered: (i) if personally delivered, on the date of delivery; (ii) if
sent by United States mail in the manner prescribed above, on the date shown on the return
receipt for acceptance or rejection; or (iii) if sent by overnight courier delivery service, on the
date of delivery or attempted delivery as shown by the written delivery record of such service.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have signed this Development Agreement on the dates
indicated below.
DEVELOPER
By:
Its:
By: __________________________ ___
(Notary Acknowledgment Required)
Date:
Attest:
Lara Weisiger
City Clerk
Director
Approved as to Form:
Yibin Shen
City Attorney
CITY OF ALAMEDA
By: __________________________ _
Eric J. Levitt, City Manager
Date:
Recommended for Approval:
Andrew Thomas
Planning Building and Transportation
Authorized by City Council Ordinance No. ____ __
Exhibits:
A Boatworks Property -Legal Description
B Fee Exhibit
C AMC 30-95.1 and 30-95.2
D AMC 30-94.3
Exhibit A: (to be added)
Exhibit B: Fee Exhibit
The following identifies the fees that will apply to the Project (as defined in the 2020 Settlement
Agreement and Development Agreement) and how they are calculated.
Unit Based Fees: Each building will be assessed the following fees at the following rates.
Buildings with more than one unit shall pay per unit. The per unit fee shown below shall be
adjusted annually by the CPI*.
1. Certificate of occupancy: $150 per unit
2. Public Works-Waste Management Reporting Fee: $373 per unit
3. Public Works-Sewer Connection Fee: $1,118 per unit
4. Filing Fee: $264 per unit
5. Plan Check-Planning: $216 per unit
6. Plan Check-Fire: $150 per unit
7. Plan Check-Public Works: $192 per unit
*"Adjusted annually by the CPI" means that at the time the fee is due, the fee will be adjusted
by multiplying it times the most recent Consumer Price Index for all Urban Consumers for the
San Francisco-Oakland-Hayward area (or the successor index with the smallest geographic unit
that includes the City of Alameda}, and dividing it by the same index from February 2020 CPI-U
for SF-OAK-HAY. Should the non-adjusted fee be greater than the fee in existence at the time
of application, developer may elect to pay the lesser.
Valuation Based Fees: Each building will be assessed valuation based fees at the following
rates.
a. Improvement tax is 1% of "Valuation" * *
b. Community Planning Fee is 0.5% of"Valuation"
c. Technology Fee is 5% of applicable permit fee
* * "Valuation" will be based on the International Code Council (ICC) Building Valuation Data
cost guide, a periodic publication updated at six-month intervals and used to provide a simplified
method of estimating a value of a building. The most recent version of the guide can be found
here: https:ijcdn-web.iccsafe.orglwp -content/uploads/B VD-BSJ-AUG19-converted.pdf.
Valuation will be determined based on the most recent version at the time that the fees are due,
not the version in place as of the date of the Settlement or Development Agreement.
Fees Based on Floor Area and Fire Rating :
a. Plan Check-Building
b. Inspection-Building
Fees based on floor area, occupancy classification and fire rating will be charged at rates
determined by City of Alameda July 2019 Master Fee Schedule. Plan Check-Building Fees for
duplicate units/buildings charged at 25% of initial unit/building fee. The Plan check -Building
fee and Inspection Building fee shall be adjusted annually by the CPI*.
Development Impact Fees:
Each building will be assessed development impact fees. Single family homes will be charged
Development Impact Fees at a rate of $2,235 per unit for Transportation, $8,105 per unit for
Parks, $1,377 per unit for Facilities and $2,127 per unit for Safety. Units other than single
family homes will be charged Development Impact Fees at a rate of $1,735 per unit for
Transportation, $5,921 per unit for Parks, $1,092 for Facilities and $1,688 per unit for Safety.
The rules and regulations for application of these fees per AMC Section 27-3 (adopted July
2019) shall apply. Deed restricted affordable housing units shall not be assessed Development
Impact Fees. These fees shall be adjusted annually by the Construction Cost Index for the San
Francisco Bay Area.
Public Works Review:
Public Works site improvement review and inspection will be billed at actual cost.
Design Review:
Design Review fees will be billed at actual cost.
APPLICABLE to ALL FEES:
Should the fee(s) in place at the time of the application for building permit(s) be less than the
fees on this schedule, or should any of the fees on this schedule no longer exist at the time of the
application for building permit(s), the developer may elect to pay the lesser.
Exhibit C: (to be added)
Exhibit D: (to be added)
******
I, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by the Council of the City of Alameda in a continued
regular meeting assembled on the 22nd day of April, 2020 by the following vote to wit:
AYES: Councilmembers Knox White, Oddie, Vella and Mayor Ezzy
Ashcraft -4.
NOES: Councilmember Daysog - 1 .
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official
seal of said City this 23rd day of April, 2020.
Clerk City of Alameda
APPROVED AS TO FORM: