CIC Resolution 05-138I,
COMMUNITY IMPROVEMENT COMMISSION
OF THE CITY OF ALAMEDA
RESOLUTION NO.05 -138
J
'w AUTHORIZING THE EXECUTIVE DIRECTOR OF THE CIC TO EXECUTE A
u_ Z FOURTH AMENDMENT TO THE DISPOSITION AND DEVELOPMENT
O �„ = AGREEMENT ("DDA") BY AND BETWEEN THE CIC AND CATELLUS LIMITED
UO OPERATING PARTNERSHIP ( "DEVELOPER ") WHICH WOULD EXTEND THE
EXPIRATION TERM BY ONE -YEAR FROM JUNE 2007 TO JUNE 2008 IN
ORDER TO ALLOW THE DEVELOPER TO EXPLORE A CHANGE FROM
COMMERCIAL OFFICE /RESEARCH AND DEVELOPMENT LAND USE TO A
MIXED -USE RETAIL /RESIDENTIAL LAND USE AT THE FORMER FISC
PROPERTY.
WHEREAS, on June 1, 2000, the Community Improvement Commission
( "CIC') pursuant to Resolution #00 -88 authorized the Executive Director to
execute a Disposition and Development Agreement (hereinafter referred to as
the "DDA ") with the Catellus Development Corporation ( "Developer") for the sale
and development of certain property at the Fleet Industrial Supply Center and
East Housing portion of the Naval Air Station, the ( "Property "); and
WHEREAS, on June 16, 2000, the parties executed the DDA; and
WHEREAS, the CIC and Developer have entered into other agreements
related to the DDA including a Joint Implementation Agreement dated May 31,
2000, a Development Agreement dated June 6, 2000, and Construction
Reimbursement Agreement ( "CRA ") dated August 21, 2001 in order to assure
the timely and orderly development of the Property, as contemplated by the DDA;
and
WHEREAS, previously on May 13, 2000, the City of Alameda certified the
Final Environmental Impact Report of the Catellus Mixed Use Development; and
WHEREAS, on December 18, 2001, the City of Alameda approved an
Addendum to the Final Environmental Impact Report ( "EIR Addendum ") for the
DDA; and
WHEREAS, on December 18, 2001, the CIC pursuant to Resolution #01-
99 authorized the Executive Director to amend the original DDA, as amended by
the First Amendment to the DDA to address the Settlement Agreement by and
between the City and Petitioners dated March 20, 2001; and
WHEREAS, on December 19, 2001, the parties executed the First
Amendment to the DDA; and
WHEREAS, on March 18, 2003, the CIC pursuant to Resolution #03 -110
authorized the Executive Director to execute a second amendment to the DDA to
address a revised project phasing schedule, shortfall lending by the developer
and security to be provided to developer for funds lent to the CIC for demolition
and backbone infrastructure for the residential project; and
WHEREAS, on November 18, 2003, the CIC pursuant to Resolution #03-
119 authorized the Executive Director to execute a third amendment to the DDA
to provide for the release of a 3.437 -acre parcel from Catellus' development
obligations pursuant to the DDA; and
WHEREAS, the primary intent of the Fourth Amendment to the DDA is to
provide a one -year term extension to Catellus for its development obligations
pursuant to the DDA; and
WHEREAS, the CIC has determined that by amending the DDA: The CIC
will further encourage the productive use and timely redevelopment of
underutilized former military base property.
NOW, THERFORE BE IT RESOLVED, that the CIC authorizes the
Executive Director to execute the proposed Fourth Amendment to the DDA with
the Developer for the Sale and Development of the Fleet Industrial Supply Center
and the East Housing portion of the Naval Air Station consistent with the
Business and Waterfront Improvement Project and the City of Alameda General
Plan.
RECORDING REQUESTED BY AND
WREN RECORDED MAIL TO:
City Clerk
City of Alameda
2263 Santa Clara Avenue
Alameda, CA 94501
Recorded for the Benefit of
The City of Alameda
Pursuant to Government Code Section 6103
Exempt from Recording Fee Pursuant
To Government Code Section 37383
FOURTH 6MENDMENT TQ DISPOSITION AND DEVELOPMENT ,A_GEREE1 ENT
THIS FOURTH AMENDMENT TO DISPOSITION AND DEVELOPMENT
AGREEMENT (this `Fourth Amendment") is made effective the day of August, 2005 (the
"Fourth Amendment Effective Date ") by and between the COMMTJNITY IMPROVEMENT
COMMISSION OF THE CITY OF ALAMEDA, a public body, corporate and politic (the
"CM"), and CATELLUS DEVELOPEMNT CORPORATION, a Delaware corporation,
formerly known as Catcllus SubCo, Inc., a Delaware corporation with corporation identification
number 3632445 ( "CDX ").
RECITALS
A. The CIC and CDX's predecessor in interest entered into the Disposition and
Development Agreement dated as of June 16, 2000, and recorded in the Official Records of
Alameda County on July 21, 2000, as series No. 2000216842, as amended by (i) the First
Amendment to Disposition and Development Agreement dated as of December 18, 2001, and
recorded in the Official Records of the Alameda County on April 25, 2003, as series No.
2003242611, and (ii) the Second Amendment to Disposition and Development Agreement dated
as of April 2, 2003, and recorded in the Official Records of Alameda County on April 25, 2003,
as series No. 2003242612, and (iii) the Third Amendment to the Disposition and Development
Agreement dated as of November. 19, 2003, and recorded in the Official Records of Alameda
County on December 1, 2003, as_series No. 2003701894 (collectively the "DDA" or the
"Agreement "). The DDA relates to certain real property located in the City of Alameda, the
County of Alameda and the State of California (the "Property "). The Property is more
particularly described In the DDA. All capitalized terms shall have the definitions given to them
in the DDA, unless otherwise expressly stated herein.
B. Pursuant to the DDA, the CIC agreed to convey to Developer, and Developer agreed to
acquire from the CIC, the Property, in Phases, on the terms and conditions set forth in the DDA.
C. Effective as of July 15, 2005, Catellus Operating Limited Partnership, a Delaware limited
partnership, as successor by merger to Catellus Development Corporation, a Delaware
corporation with corporation identification number 2049941 ("COLP") assigned all of COLP's
rights and obligations under the DDA, including, without limitation, all rights and obligations of
the Master Developer and the Developer to the entire Business Park, to CDX.
D. CDX, in its capacity as the Master Developer and the Developer, desires, at it sole cost
and expense to explore potential amendments to the Master Plan and Subdivision Map as they
pertain to the Business Park phases of the Project (the "Potential Re- entitlement Process "). CDX
and CIC mutually recognize that the Potential Re- entitlement Process could take a minimum of a
year to accomplish. The CIC and PDX desire that the CIC's right to terminate the DDA for
failure of the Initial Demolition Conditions Precedent for the Business Park phase of the Project
be extended to accommodate the likely length of time of the Potential Re- entitlement Process.
NOW, THEREFORE, in consideration of the mutual terms, covenants, conditions and
promises set forth herein, the CIC and CDX agree as follows:
1. Amendment to Section 4.3. The third sentence of Section 4.3 of the DDA is hereby
deleted in its entirety and replaced with the following:
If Master Developer has not elected to terminate this Agreement and the Initial
Demolition Conditions Precedent applicable to Business Park Conveyance Parcel
1 have not been satisfied by June 16, 2008, and provided that no Event of Default
with respect to the CIC is outstanding after the expiration of the applicable notice
and cure periods, then the CIC shall also have the right to terminate this
Agreement, and in such event, none of the CIC, Developer nor Master Developer
shall have any further rights or obligations hereunder except as specifically
provided in Sections 4.4 and 4.9 below, or in any other Sections of this
Agreement that expressly survive termination.
2. Autjiority. The persons signing below represent that they have the authority to bind
the respective Party, and that all necessary board of directors', shareholders', partners', city
councils', redevelopment agencies', or other approvals as necessary have been obtained.
3. Counternrs. This Fourth Amendment may be executed in one or more counterparts,
and all of the counterparts shall constitute but one and the same agreement notwithstanding that
all Parties hereto are not signatory to the same original counterpart.
4. ,Ratification. The DDA, as modified by this Fourth Amendment, remains in full force
and effect, and the Parties hereby ratify the same.
IN W]NESS WHEREOP, the parties hereto have executed one or more copies of this
Fourth Amendment as of the date first set forth above.
ATTESTATION: "CIC"
By:
APPROVED AS TO FORM:
COMMUNITY IMPROVEMENT COMMISSION
OF THE CITY OF ALAMEDA,
A public body corporate and politic
By:
Debra Kurita
General Counsel Executive Director
CATELLUS DEVELOPMENT CORPORATION,
A Delaware corporation
By: Catellus Commercial Development
Corporation, a Delaware corporation, its
authorized agent
By:
Daniel R. Marcus
Senior Vice President Development
STATE OF CALIFORNIA )
)ss
COUNTY OF )
On before rn.e,
Notary Public, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
lie /she/they executed the same in his /her /their authorized capacity(ies), and that by his/her /their
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
[SEAL]
STATE OF CALIFORNIA )
)ss
COUNTY OF i.)-.017e 04 )
On 4. efore me, /' Raf ,4' rt.( c>
Notary Public, pe •sonally appeared b r e r " .. .
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose names) is /ate subscribed to the within instrument and acknowledged to me that
he /she /they executed the same in I]is/her/their authorized capacity(ies), and that by his/herAlleir
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal,
KARINA'rU CAO
Commission Ip 1361894
Notary Public - California
# i mrsda County
My Conn. EVifos Jun 20,2008.
Signature of Notary Public
[SEAM)
I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly
adopted and passed by the Community Improvement Commission of the City of Alameda in a
special meeting of the Community Improvement Commission held on the 16th day of August, 2005,
by the following vote to wit:
AYES: Commissioners Daysog, Gilmore, Matarrese, and
Chair Johnson - 4.
NOES: None.
ABSENT: None.
ABSTENTIONS: Commissioner del-Man - 1.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said
Commission this 17th day of August, 2005.
Beverly Johns
Community Improvement Commission
lAftt
Lara Weisiger, Secretary
Community Improvement 'ommission
1