Ordinance 2836CITY OF ALAMEDA ORDINANCE NO. 2836
New Series
APPROVING DEVELOPMENT AGREEMENT DA-99-01 FOR A
MIXED USE DEVELOPMENT INCLUDING SINGLE-F AMILY
RESIDENTIAL OFFICE , RESEA-L CH AND DEVELOPMENT , OPEN
SPACE , AND LIMITED RETAIL USES AS WELL AS SITES FOR
MULTIPLE FAMILY RESIDENTIAL AND A SCHOOL , LOCATED
WITHIN A PROJECT ARA ENCOMP ASSING APPROXIMATELY
215 ACRES OF LAN AND WATER AT THE FORMER ALAMEDA
FLEET AI'I INDUSTRIAL SUPPLY CENTER AND ANNX AND
NAVAL AIR STATION (NAS) ALAMEDA EAST HOUSING
BE IT ORDAIND by the City Council of the City of Alameda that:
Section 1.In accordance with Subsection 30-91 of the Alameda Municipal Code
Development Agreement DA-99-as shown on Exhibit "" is hereby adopted for all the real
propert within the 215 acre site situated within the City of Alameda, County of Alameda, State of
California, located generally south ofthe Oakland-Alameda Estuary, west of the Marner Square
commercial area , north of the College of Alameda and Atlantic Avenue , and east of Main Street
exclusive of the Alameda Gateway Center, U.S. Coast Guard Housing, and Miler Elementary
School.
Section 2.The above Development Agreement DA-99-01 shall be known as and
referenced to as Development Agreement by and between the City of Alameda and the Catellus
Development Corporation.
Section 3.This Ordinance shall be in full force and effect from and after the
expiration of thirty (30) days from the date of jts final passage subject to the signature of the
development Agreement.
Attest:
City Clerk
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO
City of Alameda
2263 Santa Clara Avenue
Alameda , California 9450
Record for the Benefit of
the City of Alameda
Pursuant to Governent Code Section 6103
FOR RECORDER'S USE ONLY
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF ALAMEDA
AND
CATELLUS DEVELOPMENT CORPORATION
SFRLIBI\SRD\5331869'cd(36("3HII' DOC)(IOv II)
ARTICLE 1 GENERAL PROVISIONS........ ................. ....................... ........... .....,.... ......... .......... 5
1 . 1 P arti es .. .
.. . .. . . . .. . . .. .. . .. .. .. . . . .. . .. .. . . . .. . . . . . . . .. .. .. . .. .. .. .. .. .. . .. . .. . .. . .. .. . .. . .. . .. . .. .. . . . .. . . .. .. . .. .. . . .. ...
City.............................................................................................................. 5
Developer................... ................ .........
........ ....... ................
......................... 5
Property Subject to this Development Agreement.................................................. 5
Property....................... ............. ........... ............... ............... ....... ....... ............ 5
2.2 Deletions from Property.............................................................................. 5
1.2.3 Additions to Property.................................................................................. 6
Term........................................................................................................................ 6
Effective Date............. ................................................................................ 6
Term of Agreement............. ................... .................... ................................. 6
1.3.Consequence of Effective Date Occurrng After Agreement Date............. 6
Disposition and Development Agreement... .......................................................... 7
1.4.1 Cornon Terms or Provisions; Conflict............ ......................................... 7
1.4.2 DDA as Project Approval........................................................................... 7
Project Approvals.................................................................................................... 7
EIR ...................................... .......
............ ............ .........
.......................... 7
1.5.2 General Plan Amendments.........
..... ...................
................................... 7
1.5.Amendment to the Business Watt ont Improvement Plan ......................
1.5.4 Disposition and Development Agreement................................................. 7
Zoning Amendments................................................................................... 8
Master Plan.................................. ............................................................... 8
1.5.Governent to Governent Map and Disposition Map............................. 8
Tentative Map..................................... .................. ................................,..... 8
1.5.Development Agreement.............. ..............
...... ......... ........ .............
........... 8
10 Subsequent Approvals ................................ .............. ............................. ..... 8
1.5.11 Joint Implementation Agreement................................................................ 8
Definitions............................................................................................................... 9
1.2
1.3
1.4
1.5
1.6
TABLE OF CONTENTS
Page
ARTICLE 2 PUBLIC BENEFITS................................................................................................. 9
Public Benefits............................................... ...... ................................................... 9
ARTICLE 3 DEVELOPMENT OF THE PROPERTY................................................................. 9
Proj ect Development............................................................................................... 9
3. 2 Vested Elements...................................................................................................... 93.3 Development Construction and Completion......................................................... 10
3.3.Timing of Development; Pardee Finding................................................. 10
2 No Other Requirements................................... ......................................... 10
Development Plans................................................................................... 10
Effect of Project Approvals and Applicable Rules; Future Rules ........................
Governing Rules....................................................................................... lO
3.4.2 Changes in Applicable Rules; Future Rules ............................................. 10
3.4
3.4.Changes in Regional , State or Federal Laws ............................................
3.4.4 Expansion of Development Rights ........................................................... 12
Conflicts.................................................................................................... l2
Processing Subsequent Approvals........................................................................ 12
Processing of Subsequent Approvals........................................................ l2
FISC/East Housing Permit Processing......................................................
Project Administration Offce................................................................... l3
Development Fees , Exactions and Conditions...................................................... 15
General........................................................................................ ....... ....... 15
Processing Fees......................... ..................... ................ ....... .................... 15
Impact Fees ............................... ......... ............. ........ ................. ........... ...... 15
6.4 Conditions of Subsequent Approvals........................................................ 16
Taxes and Assessments......................................................................................... 16
Life of Project Approvals and Subdivision Maps................................................. 17
Life of Subdivision Maps....... ............. ...................................................... 17
8.2 Life of Other Project Approvals ............................................................... 17
Further CEQA Environmental Review................................................................. 17
Reliance on Project EIR...... .........................
...... .................... ""'''''''' .......
Subsequent CEQA Review....................................................................... 17
Building Regulations """""""""""""""""""""""'''''''''''''''''''''''''''''''''''''''''''''' 18
Traffic Cap............................................................................................................ 18
ARTICLE 4 ADDITIONAL OBLIGATIONS OF THE PARTIES ............................................ 18
College of Alameda Coordination ........................................................................ 18
Conveyance of Backbone Infrastrcture and Residential Public1y-
Maintained Streets....................................... ........... '''''''''''''''''''''''''''''''''''''''''''''' 19
Assessment Financing........................................................................................... 19
Eminent Domain Powers................................................. ..................................... 19
Public ImprovementslBackbone Infrastructure.. .......... .......... .............................. 19
Alameda Unified School District Coordination.................................................... 19
Housing Agreement.............................................................................................. 20
Port of Oakland..................................................................................................... 20
Compliance With Mitigation Monitoring Reporting Program ("MM"
) ..........
Subsequent Actions..... .
................ ...........................................................................
: 20
Acquisition and Funding Agreement.....,...... .............. ....... .................................. 20
Maps...................................................................................................................... 20
Adjustment in Boundaries....... ............ ..................... ......... ................. .................. 21
Multi-Family Housing Site .............
............. .................
.............. ......................... 21
4.3
4.4
ARTICLE 5 ANAL REVIEW................................................................................................ 21
Anual Review...................................................................................................... 21
Commencement of Process................................................................................... 21
Master Developer Compliance Letter ...................................................................5.4 Planning Director Review.............. ..............
........ ..................
............................... 22
11.
Planning Director Compliance Finding................................................................ 22
Planning Director Non-Compliance Finding .................................................... .... 22
Cure Period........................................................................................................... 22
Referral of Default to Planning Board ..................................................................
Delivery of Documents....................... .,..................
...... ......
.................................. 23
Planning Board Compliance Finding.................................................................... 23
Planning Board Non-Compliance Finding; Referral to City CounciL................. 23
Relationship to Default Provisions ....................................................................... 24
ARTICLE 6 AMENDMENTS. ..... .................... ............ ........ ...................... ...................... ..... ...... 24
Amendments to Development Agreement Legislation......................................... 24
Amendments to or Cancellation of Development Agreement.............................. 24
Operating Memoranda ....
................... ................................................. ....
...... .... .... 256.4 Amendments to Project Approvals (Including Subsequent Approvals) ............... 25
Variation Permitted by Master Plan.......................................................... 25
6.4.2 Amendments to Project Approvals (Including Subsequent
Approvals).......................................................... ...................................,... 25
6.4.Administrative Amendments.... .......... ...................................................... 26
ARTICLE 7 DEFAULT , REMEDIES AND TERMINATION................................................... 26
Events of Default ............ .............................................. ..... ................................... 26
Meet and Confer...... ............................................................................................. 27
Remedies and Termination...... .............
........................
""'''''''''''''''''''''''''''''''''''' 27
7 .Legal Action by Parties.......
,........ ............ """'..'''''''''
,,'' ....................................... 27
Remedies..................................................................... .............................. 27
2 No Damages.............................................................................................. 28
Effects of Litigation.............................................................................................. 28
Arbitration............................................................................................................. 29
Termination........................................................................................................... 29
Expiration of Term.................................................................................... 29
Survival of Obligations.. ........... .......... .............. ........ ............... ................. 29
Termination by City....... ....................... .................... ........ ....... ""'"'''''''''' 29
ARTICLE 8 COOPERATION AN IMPLEMENTATION....................;.................................. 29
Further Actions and Instruments........................................................................... 29
Regulation by Other Public Agencies................................................................... 298.3 Other Governental Permits and Approvals........................................................ 308.4 Cooperation in the Event of Legal Challenge....................................................... 30
Revision to Project........................................................ ........................................ 30
ARTICLE 9 TRASFERS AND ASSIGNMENTS .................................................................... 30
Right to Assign ..................................................................................................... 30
Release upon Transfer................................... .........
........ ..... .........
............... .......... 31
Covenants Run with the Land............................................................................... 31
111.
9.4 Community Improvement Commission Exercise of Right of
Reverter/Non- Transfer Under Disposition and Development Agreement ........... 3l
9.4.1 Termination; Allocation of Rights and Obligations.................................. 32
9.4.Responsibility for Additional CEQA Review and Conditions;
Lin1itation on Uses.................................. .......... ........................................ 32
IV.
ARTICLE 10 MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE........................ 33
10.Mortgagee Protection............................ ....,.... ....................... ................................ 33
10.Mortgagee Not Obligated ..... ........... ............... ....................... ......... ................ ...... 33
10.Notice of Default to Mortgagee; Right of Mortgagee to Cure.............................. 33
10.No Supersedure........................................... ............. ...... ....................................... 33
10.Technical Amendments to this Aricle 10
.... ........ ........
............................ ............ 33
ARTICLE 11 MISCELLAl'-EOUS PROVISIONS .............. ........ ................ ..... ........... ............... 34
11.Limitation on Liability ..........................................................................................
II . 2 Force Majeure....................................................................................................... 34
11.3 Notices , Demands and Communications Between the Parties ............................. 35
11.4 No Joint Venture or Partnership........................................................................... 36
11.Severability........................................................................................................... 36
ll.Section Headings.................................... .............................................................. 36
11.Construction of Agreement...................................................................................
11.Entire Agreement............................ ........................ ............. ................................. 37
11.Estoppel Certificates............................................................................................. 38
ll.10 Execution and Recordation................................................................................... 38
11.11 No Waiver ...................................................................,......................................... 38
11.12 Time Is of the Essence .......................................................................................... 39
11.13 Applicable Law ...............................................................................,...............,..... 39
11.14 Attorneys ' Fees ..................................... .......... ....." ...................... ......................... 39
11.15 Third Party Beneficiaries ...................................................................................... 39
11.16 Constructive Notice and Acceptance .................................................................... 39
11.17 Counterparts........................................................ ...... ............. ............................... 39
11.18 Authority.................................................. .............. ............................................... 39
EXHIBITS
Exhibit A
Exhibit B
Exhibit C
Exhbit D
Exhbit E
Exhbit F
Exhibit G
Appendix I
Legal Description of the Propert
Map of the Property
Form of Release
Public Benefits
Joint Implementation Agreement
Impact Fees
Mitigation Monitoring and Reporting Program
Definitions
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF ALAMEDA AND
CATELLUS DEVELOPMENT CORPORATION
THIS DEVELOPMENT AGREEMENT ("Development Agreement" or
Agreement") is made and entered into this day of
- ("
Agreement
Date ) by and between the CITY OF ALAMEDA , a municipal corporation organized and
existing under the laws of the State of California ("City ), and CATELLUS DEVELOPMENT
CORPORATION , a Delaware corporation ("Developer ). City and Developer are referred to
individually as "Party," and collectively as the "Parties.
RECITALSA. In order to strengthen the public planning process , encourage
private participation in comprehensive planing and reduce the economic costs
and risk of development , the Legislature of the State of California enacted
Section 65864 et seq . of the GovernentCode (the "Development Agreement
Legislation ) which authorizes 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.B. Pursuant to Governent Code Section 6S865 , City has adopted
rules and regulations establishing procedures and requirements for consideration
of development agreements , which procedures and requirements are contained in
City Municipal Code Chapter XX , AricleVII (the "City Development
Agreement Regulations ). This Development Agreement has been processed in
accordance with the City Development Agreement Regulations.C. The United States Navy ("Navy ) owns in fee approximately
218 acres of real property in City, approximately 72 acres of which ("East
Housing ) is a portion oftheformer Alameda Naval Air Station ("NAS
Alameda ) and approximately 146 acres of which is the former Fleet Industral
Supply Center ("FISC"). NAS Alameda closed in April 1997 and the FISC
closed in September 1998. The Navy initiated the disposal process forNAS
Alameda pursuant to the Defense Base Closure and Realignent Act of 1990,
whichresulted orwil result in the economic developm.entconveyance of East
Housing to the Alameda Reuse and Redevelopment Authority ("AR"
Speciallegislationauthorizes the transfer oftheFISCto City independent of the
NAS Alameda process. . TheNavy,AR and City negotiated the terms of the
conveyance ofNAS Alameda and the FISCto .and the City, respectively.
ARandtheCity wil transfer or havetransferredNASAlameda and the FISC
to the Community Improvement Commission of Alameda ("CIC"). Pursuant to
the Disposition and Development Agreement between CIC and Developer dated
DDA"), and subject to the conditions therein , upon acquisition of
NAS Alameda and the FISC from AR and the City, respectively, CIC is
obligated to sell to Developer and Developer is obligated to purchase from CIC
portions of the FISC and East Housing, consisting of approximately 87 acres for
the residential portion of the Project and approximately 77 acres for the business
park portion of the Project. In addition , portions ofthe FISC / East Housing will
be sold/conveyed by the CIC or City to both the Port of Oakland ("Port") and the
Alameda Unified School District ("AUSD"). An additional approximately 2.
acres will be utilized by the CIC or Alameda Housing Authority for a 39-unit low
income housing project ("Multi-Family Housing Site ). The boundaries of the
portion of the FISC and East Housing to be conveyed to Developer depend on the
boundaries of the property to be conveyed to the Port of Oakland , AUSD and
used for the Multi-Family Housing Site. The boundaries of the property to be
conveyed to the AUSD have been defined. The boundaries of the property to be
conveyed to the Port of Oakland and the property to be used for the Multi-Family
Housing Site have been tentatively set but are subject to refinement , as described
in more detail in various agreements with the Port of Oakland and for the Multi-
Family Housing Site and as described in more detail in this Development
Agreement. The portion of the FISC and East Housing to be conveyed to
Developer, to the Port of Oakland , to AUSD and to be used for the Multi-Family
Housing Site are referred to herein , collectively, as the "Property." The Property
is described in attached Exhibit A and shown on the map set forth in attached
Exhibit B , and the portions of the Properly to be conveyed to the Port , AUSD and
to be used for the Multi-Family Housing Site will be deleted from the definition
of "Property," as . soon as the boundares are finally established. Approximately
1.38 acres of right-of-way is currently owned by the Union Pacific Railroad
Company ("UP Right of Way ) which are planned to be acquired by the CIC.
such time as this acquisition occurs , the UP Right of Way will be added to the
definition of Property.D. The CIC and Developer have entered into the DDA , which
provides for the following action (collectively the "Project"): financing of
backbone infrastructure ("Backbone Infrastructure " as further defined in the
DDA) and the demolition ("Demolition " as fuher defined in the DDA) of the
existing improvements by the CIC; and purchase of the Propert by Developer to
cQnstruct a.mixed use development comprised of up to 500 single-family
(attached and detached) residential units , up to 1 300 000 square feet of office
space and research and development space , four one-half acre mini-parks and
associated infrastructure , all as set forth in more detail in the DDA. The
complexity, magnitude and.1ong-range natue ofthe Project would be diffcult for
Developer to undertake ifQity had not determined, through this Development
Agreement, tQ inject aSllffcient degree of certainty.intl1elanduse regulatory
process to justify the substantial financial investment associated with
development of the Project. As a result of the execution of this. Development
Agreement , both Parties .can be assured that the Projectcan proceed without
disruption Gausedby a change in City planing and development policies and
requirements , which assurance will therepy reduce the actual or perceived risk of
planning, financing and proceeding with construction of the Project.
Furthermore , while City or CIC may approve other projects after the Agreement
Date which place a burden on City s infrastructure , it is the intent and agreement
of the Parties that Developer s right to build and occupy the Project , as set forth in
the Project Approvals (defined in Section l.5 of this Development Agreement),
shall not be diminished as a result of such other projects and that Developer s cost
to develop the Project shall not be increased as a result of such other projects.E. The DDA contains a schedule of performance which contains
extensions for lack of market. As with other major private undertakings , the
development of the Project is subject to significant economic and demographic
uncertainties. These uncertainties , together with other currently unkown factors
which may arise over the Term of this Development Agreement , prevent the CIC
or Developer from presently predicting the precise timing for development of the
facilities described in Recital D above. Nevertheless , assuming that market
conditions perform as currently anticipated (such that the Property is developed at
the rate anticipated in the DDA) and no force majeure events occur, it is the
present intention of Developer to construct the Project during the Term ofthis
Development Agreement.F. City is desirous of advancing the socio.economic interests of
City and its residents by promoting the productive use of underdeveloped , former
military base 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 of
the Project , which are in addition to those dedications , conditions and exactions
required by.laws.or regulations and asset forth in this Development Agreement
and which advance the planing objectives of, and provide benefits to , City. By
entering this Development Agreement , City also intends to cooperate with the
CIC, and to apply City authority and powers to facilitate the implementation of
the projectgoalsofthe CIC asset forth inthe DDA.G. City has determined that by entering into this Development
Agreement: (a) City wil ensure the productive use. of underdeveloped , former
militar base property and foster orderly growth and quality development in City;
(b) development wil proceed in accordance with the goals and policies set forth
in the City of Alameda General Plan ("General Plan ) and wil implement City'
stated General Plan policies; (c) City willreceive substantially increased propert
tax and sales. tax revenues; (d) City wil benefit from increased employment
opportities for residents of City created by the Project; and (e) City wil receive
Public Benefits(asdescribedinSection2.rein)providedbythe Project for the
residents of City.H. Developer has applied for , and City has granted, the Project
Approvals in ordertoprotect the interests of its citizens inthe quality of their
community and environment. As partofthe Project Approvals , City has
undertaken , pursuant to the California Environmental Quality Act (Public
Resources Code 921000 et seq.hereinafter "CEQA"), the required analysis of
the environmental effects which would be caused by the Project and has
determined those feasible mitigation measures which will eliminate , or reduce to
an acceptable level , the adverse environmental impacts of the Project. City has
completed and certified an Environmental Impact Report ("EIR") in connection
with the Project , including the Project Approvals. City has also adopted a
mitigation monitoring program to ensure that those mitigation measures
incorporated as part of, or imposed on , the Project are enforced and completed.
Those mitigation measures for which Developer , the City and the CIC are
responsible are incorporated into and required by the Project Approvals. City has
also adopted statements of fact and findings of overrding considerations for those
adverse environmental impacts of the Project that may not or cannot be mitigated
to an acceptable level.1. In addition to the Project Approvals , the Project may require
various additional land use and construction approvals , termed Subsequent
Approvals , from City and CIC in connection with development of the Project.1. City has given the required notice of its intention to adopt this
Development Agreement and has conducted public hearings thereon pursuant to
Governent Code Section 6S867. As required by Governent Code Section
6S867.S, City has found that the provisions of this Development Agreement and
its purposes are consistent with the goals , policies , standards and land use
designations specified in City s General Plan.K. On May 13 2000 the City of Alameda Planning Board
Planning Board"), the initial hearing body for purposes of Development
Agreement review , recommended approval of this Development Agreement
pursuant to Resolution No. PB-00-42 On
, _
the City of
Alameda City CounciL("City Council") adopted its Ordinance No.
approving this Development Agreement and authorizing its execution.L. For the reasons recited herein, City and Developer have
determined that the Project is a development for which this Development
Agreement is. appropriate. This Development Agreement wil eliminate
uncertainty regarding Project Approvals (including the Subsequent Approvals),
thereby encouraging planning for, investment in and commitment to use and
development of the Property. Continued use and devel()pment of the Propert
wil in tuprovidesubstantial housing, employment and property tax benefits as
well as other public benefits to City, and contrbute to the provision of needed
infrastructure for area gr()wth , thereby achieving the goals and purposes for which
the Development Agreement Legislation was enacted.M. The terms and conditions of this Development Agreement have
undergone extensive review by City staff, its Planing Board and its City Council
at publicly noticed meetings and have been found to be fair , just and reasonable
and in conformance with the City General Plan, the Development Agreement
Legislation , and the City Development Agreement Regulations and , further , the
City Council finds that the economic interests of City s residents and the public
health , safety and welfare will be best served by entering into this Development
Agreement.
NOW , THEREFORE , in consideration of the mutual covenants and promises set
forth herein , City and Developer agree as follows:
ARTICLE
GENERAL PROVISIONS
1.1 Parties.
. City is a California municipal corporation , with offces
located at 2263 Santa Clara Avenue in the City of Alameda , California. "City," as used in this
Development Agreement , shall include City and any assignee of or successor to its rights
powers and responsibilities.
1.2 Developer.Developer is a Delaware corporation, with offces
located at 201 Mission Street in the City and County of San Francisco , California. "Developer
as used in this Development Agreement, shall include Catellus Development Corporation and
any permitted assignee or successor in interest as herein provided. "Master Developer , as used
in this Development Agreement shall mean "Master Developer" as defined by the DDA.
1.2 Property Subject to this Development Agreement.
1.2.Property . All of the Property, as described in Exhibit A and shown
in Exhibit B , shall be subject to this Development Agreement , subject t? Section 1.2.2 below.
Deletions from Property . The Paries acknowledge that CIC and/or
City has entered into or intends to enter into agreements with several paries which wil result in
the deletion of certain property from the Property. These.agreements include: (i) that certain
Memorandum of Understanding, executed by all parties as of February 22 2000 , by and among
the Alameda County Homeless Base Conversion Collaborative AR, CIC , the Alameda
Housing Authority,.City,the County of Alameda, and the Alameda Point Collaborative , Inc.
Housing Agreement"), which provides for the conveyance of the Mult-Family Housing Site
shown in the alternative locations in the Housing Agreement , to third paries for thirt-nine (39)
unts of multi-family housing ("Multi-Family Housing )that are proposed independently ofthe
Project; (ii) an agreementbetweenCity and AUSD , dated March 28, 2000
, ("
School
Agreement") which provides fofthe conveyance of certain propert described therein to the
AUSD for an approximately eight (8) acre school site ("School Site ); and (ii) an agreement
between the Port of Oakland ("Port") and City dated January 18 , 2000 ("Port Agreement"
whichprovides.for.aportionofthePropert.approximatelydescribed in the Port Agreement
Port Propert") to be taken by the Port. At such times as the Multi-Family Housing Site is
finally selected pursuant to the Housing Agreement , and the boundaries of the Port Property are
finally established , the Parties shall meet and confer in good faith to revise the description of the
Property contained in Exhibits A and to remove from the legal description and the map the
portion of the Property that is conveyed to third parties for the Multi-Family Housing Site , the
School Site and the Port Property. At the time of such deletions , the term "Property " herein shall
automatically exclude such portion of the Property so deleted. Prior to conveyance by the City
and/or CIC of any portion of the Property to the Port , the AUSD or to be used for the Multi-
Family Housing Site pursuant to the above-described agreements , the City and Developer shall
enter into a release , substantially in the form attached hereto as Exhibit C,releasing the Multi-
Family Housing Site , the School Site and the Port Property from the Development Agreement.
City shall cooperate with CIC to allow CIC to execute similar releases , if needed , under the
DDA.
Additions to Property . The Parties acknowledge that at the time
the CIC acquires the UP Right of Way shown on Exhibit B and included in the Master Plan , it
shall automatically become part of the "Property" herein and the City and Developer shall record
documents showing the addition of the UP Right of Way to the Property.
1.3 Term
Effective Date . This Development Agreement shall become
effective upon the last to occur of the following ("Effective Date
(a) Execution ofthis Agreement by all Parties;
(b) The effectiveness of the ordinance approving this Agreement;
(c) Execution by the United States Navy and the AR of a
Memorandum of Agreement providing for transfer from the Navy to the AR of the EastHousing; and
(d) Execution by the United States Navy and the City of a Memorandum
of Agreement providing for transfer from the Navy to the City of FISC.
Term of Agreement.The term ("Term ) of this Development
Agreement shall commence uponthe Effective Date and shall continuein full forc e and effect
until the twentieth (20th) anniversary of the Effective Date thereafter unless extended or earlier
terminated as provided in this Agreement. The Term has been established by the Paries as a
reasonable estimate ofthe time required to develop the Project and obtain the Public Benefits of
the Project. In establishing and agreeing to such Term , City has determined that the Project
Approvals (as defined in Section .1. S) (including 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 Project.
1.3.Consequence of Effective Date Occurrng After Agreement Date
The Project shall be subject to the Applicable Rules and Vested Elements in effectas ofthe
Agreement Date and the Impact Fees that are set forth in this Development Agreement. Any
changes to the Applicable Rules or Vested Elements or Impact Fees that occur after the
Agreement Date shall not be applicable to the Project , except as explicitly permitted in this
Development Agreement.
1.4 Disposition and Development Agreement.The Project is the subject of both
this Development Agreement and the DDA. It is the intent of the Parties , to the maximum extent
feasible and consistent with the documents ' respective functions , to make this Development
Agreement and the DDA consistent with one another as follows:
l.4.Common Terms or Provisions: Conflict.With respect to
provisions or definitions so indicated , this Development Agreement adopts identical provisions
or definitions in the DDA. If such provisions in the DDA are amendcd , then , unless the Parties
mutually agree otherwise , the City shall adopt the same amendment to the Development
Agreement at the next possible hearing date of the City Council , without imposing any other
terms as a condition to such amendment.
1.4.DDA as Proiect Approval.The DDA is listed in Section l.5 as a
Project Approval. To the extent that provisions of the DDAarematerial to securing to the
Developer the Vested Elements set forth in Section 1.5 , the City recognizes such provisions and
agrees to take those actions reasonably necessary and within its power and jurisdiction to make
such provisions applicable to its regulation of the Project.
1.5 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 below. For purposes of this Development Agreement , the term "Project Approvals
shall mean all ofthe approvals described in this Section 1.5.
1.5.1 EIR . An EIR forthe Project (State Clearnghouse
No. 1998112078) prepared pursuant to CEQA, recommended for certification by the Planing
Board on May 13 , 2000 , by Resolution No. PB-00-, and certified with findings by the CityCouncil on
, -
' by Resolution No. -
l.S.General Plan Amendments . On ,2000 , following Planing
Board review and recommendation , and after a duly noticed public hearng, the City Council , by
Resolution No. approved amendments to the City General Plan ("General Plan
Amendments ) which redesignated the Property from Federal Facilities and Medium-Density
Residential to Business Park, Medium-Density Residential, PubliclIstitutionaland Parks and
Open Space; deleted certain policies relatedto he operation oftheforrerNAS Alameda and
FISC on the Propert; and expanded a portion of Inventory Site #1 in the Housing Element from
the Propert to another locationinNASAlameda.
Amendment to the Business Waterfront Improvement Plan . On
, -
' following review and recommendation , and after a duly
noticed public hearng, CIC, by o.
--'
approved an amendment ("BWI
Amendment") to the Business WaterfrontImprovementPlan.BWI") to revise the Plan s land
use designations to be consistent with the General Plan Amendments.
' following
hearng, CIC , by
5.4 Disposition and Development Agreement.
review and recommendation , and after a duly noticed public
No. -' approved the DDA for the Property.
1.5.Zoning Amendments . On , following Planning
Board review and recommendation , and after a duly noticed public hearing, the City Council , by
Ordinance No. -' approved an amendment to the City of Alameda Zoning Ordinance
Zoning Amendments ) which changed the zoning designation of the Property from M-
General Industrial Manufacturing District with a Special Governent Combining Overlay (G)
and R-G, Neighborhood Residential with a Special Governent Combining Overlay (G) to
, Mixed Use Planned Development.
1.5.Master Plan . On , following Planning Boardreview
and recommendation , and after a duly noticed public hearing, the City Council , by OrdinanceNo. , approved a Master Plan for the Project ("Master Plan ), a copy of which is
attached hereto as Exhibit C
1.S.Disposition (Parcel) Map . On
, -
' following
Planing Board review and recommendation , and after a duly noticed public hearing, the City
Council , by Resolution No. -' approved a Parcel Map ("Disposition Map ) for the Project.
Tentative Map . On
, -
' following Planing
Board review and recommendation , and after a duly noticed public hearng, the City Council , by
Resolution No. -' approved a Tentative Map for the residential portion ofthe Project
Tentative Map
Development Agreement.On
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.
10 Subsequent Approvals . The Parties agree that in order to develop
the Project (including the Demolition and the Backbone Infrastructure) as contemplated in this
Development Agreement , the Proj ect may require additional entitlements , development permits
and use and/or construction approvals other than those listed in Sections 1.5.1.5.9 andl.
herein , which may include , without limitation: development plans , amendments to applicable
redevelopment plans , conditional use permits , variances, the "Acquisition and Funding
Agreement" (as defined by the DDA) and amendments thereto , subdivision approvals , street
abandonments , design review approvals , improvement agreements , infrastructure agreements
grading permits , building permits , right-of-way permits , lot line adjustments , .site plans , sewer
and water connection permits , certificates of occupancy, parcel maps , lot splits , landscaping
plans , master sign programs , transportation systems management programs and encroachment
permits (collectively, "Subsequent Approvals ). At such time as any Subsequent Approval is
approved by the City and/or the CIC as applicable , such Subsequent Approvalshallbecome
subject to all the terms andconditionsofthisDevelopment Agreement applicable to Project
Approvals and shall be treated as a "Proj ect Approval" under this Development Agreement.
ll Joint Implementation Agreement. On , CIC and City
entered into the Joint Implementation Agreement Between the City of Alameda and the
Community Improvement Commission of the City of Alameda Related to the Implementation of
the Catellus Mixed-Use Development ("Joint Implementation Agreement"), setting forth
inter alia , processing procedures for the Subsequent Approvals and various actions to be
undertaken by CIC and/or City to implement the Project.
Definitions . The capitalized terms used in this Development Agreement shall
have the meanings set forth in Appendix I attached hereto.
ARTICLE 2
PUBLIC BENEFITS
Public Benefits . In consideration of, and in reliance on , City agreeing to the
provisions of this Development Agreement , Developer wil provide the public benefits ("Public
Benefits ) described in Exhibit D , which are over and above those dedications , conditions and
exactions required by laws or regulations.
ARTICLE 3
DEVELOPMENT OF THE PROPERTY
Project Development.Subject to the provisions of this Agreement and the
DDA, Developer shall have the right to develop the Project on the Property, in accordance with
the Vested Elements. Developer shall be entitled to all the rights under this Development
Agreement during any time period in which it owns or has the right to own the Property under
the DDA, except where the rights are limited to the Master Developer in which case Master
Developer shall be entitled to the rights under the Development Agreement.
Vested Elements . The permitted uses ofthe Property, the maximum density
and/or number of residential units , the intensity of use, the maximum height and sizeofthe
proposed buildings, provisions for reservation or dedication of land for public purposes , the
provisions for public improvements and financing of public improvements , and the other terms
and conditions of development applicable to the Property are as set forth in:
(a) The General Plan of City on the Agreement Date , including the
General Plan Amendments ("Applicable General Plan
(b) The Zoning Ordinance of City on the Agreement Date , including the
Zoning Amendments ("Applicable Zoning Ordinance
(c) Other rules , regulations , ordinances and policies of City applicable to
developmentofthe Propert on the Agreement Date (collectively, together with the Applicable
General Plan and Applicable Zoning Ordinance , the "Applicable Rules ); and
(d) The Proj ect Approvals (including,inter alia , this Development
Agreement and the Subsequent Approvals), as they maybe amended from time to time upon
Developer s consent , such consent to be granted at the sole discretion of Developer) and City
(and/or CIC's) approval of the amendment in accordance with Section 6.4.2 ofthis Agreement;
and are hereby vested in Developer, subject to and as provided in the provisions of this
Development Agreement ("Vested Elements ). City hereby agrees to be bound with respect to
the Vested Elements , subject to Developer s compliance with the terms and conditions of this
Development Agreement. The intent of this Section 3.2 is to cause all development rights which
may be required to develop the Project in accordance with the Project Approvals to be deemed
vested in Developer.
Development Construction and Completion
Timing of Development: Pardee Finding . The DDA sets forth
Developer s rights and obligations with respect to the timing of development of the Property and
also contains certain phasing plans which form the basis of financial provisions relating to CIC'
funding obligations for Backbone Infrastructure and Demolition. The California Supreme Court
held in Pardee Construction Co. v. City of Camarilo 37 Ca1.3d 465 (1984), that the failure
the parties therein to provide for the timing.of development resulted in a later adopted initiative
restricting the timing of development and controlling the parties ' agreement. To. avoid the result
reached in Pardee , the Paries agree that the provisions of the DDA with respect to the timing of
development constitute provisions relating to the timing of development for purposes of Pardee
supra.
No Other Requirements . Nothing in this Development Agreement
is intended to create any affirmative development obligations to develop the Project or develop
the Project in any particular order or maner , or liability in Developer under this Development
Agreement if the development fails to occur. The DDA sets forth Developer ' s obligations
regarding development of the Project , and any default under the DDA (including failure to
develop in accordance with the timing provisions of the DDA) does not constitute a default
under this Development Agreement. Such DDA obligations are not subject to the annual review
process set forth in ARTICLE 5 herein but default under the DDAmaYTesultin termination of
Developer s rights to acquire all or part of the Property as provided intheDDA. Such
termination under the DDAmay result in terminationofthis Agreement with Tespectto such
land as provided in Section 9.4 herein.
Development Plans . NotWithstanding the terms of Section 30-
20(i) ofthe City Zoning Ordinance (the MX , Mixed Use Planned Development District),
Section 7.2 of the DDA provides , and the City agrees , that Developer shall have the right to
submit to the City for approval , and the City shall have the right to approve , Development Plans
relating to proposed Improvements to be developed in a later phase ofthe Project prior to the
substantial construction of the Improvements described in the previously approved Development
Plan for the Project.
3.4 Effect of project Approvals and Applicable Rules; Future Rules.
3.4.1 Governing Rules . Except as otherwise explicitly provided in this
Development Agreement, development ofthe Property shall be subjectto (i) the Project
Approvals , and (ii) the Applicable Rules.
3.4.2 Changes in Applicable Rules; Future Rules
(a) To the extent any changes in the Applicable Rules , or any provisions
of future General Plans , Specific Plans , Zoning Ordinances or other rules , regulations
10.
ordinances or policies (collectively, "Future Rules ) (whether adopted by means of ordinance
initiative , referenda, resolution , policy, order or moratorium , adopted by the City Council
Planning Board , or any other Board , Commission or Department of City or any offcer or
employee thereof, or by the electorate) are not in conflict with the Vested Elements , such
changes or Future Rules shall be applicable to the Project. For purposes of this Section 3.4.2(a),
the word "conflict" means changes in the Applicable Rules or the provisions ofthe Future Rules
that would (i) alter the Vested Elements , or (ii) frustrate in a more than insignificant way the
intent or purpose ofthe Vested Elements in relation to the Project , or (iii) materially increase the
cost of performance of or preclude compliance with any provision of the Vested Elements , or
(iv) delay in a more than insignificant way development of the Project , or (v) limit or restrict the
availability of Backbone Infrastructure , or (vi) impose limits or controls in the timing, phasing or
sequencing of development of the Project , or (vii) increase the permitted "Impact Fees " or add
new Impact Fees. To the extent that changes in the Applicable Rules or the provisions .of the
Future Rules (whether adopted by means of ordinance , initiative , referenda , resolution , policy,
order or moratorium , adopted by the City Council , Planning Board , or any other Board
Commission or Deparment of City or any officer or employee thereof, or by the electorate)
conflict with the Vested Elements , they shall not apply to the Project and the Vested Elements
shall apply to the Project except as provided in Section 3.4.2(b) herein.
(b) A change in the Applicable Rules or a provision of a Future Rule
which conflcts with the Vested Elements.shall nonetheless apply to the Property if, and only if
(i) consented to in writing by Developer; (ii) it is determined by City and evidenced through
findings adopted by the City Council that the change or provision is reasonably required in order
to prevent a condition dangerous to the public health or safety; (ii)required by changes in State
or Federal law as set forth in Section 3.4.3 below; .(iv) consists of changes in or. new fees
permitted by Section 3.6; (v) consists of revisions to or new Building Regulations permitted by
Section 3.10; or (vi) is otherwise expressly permitted by this Agreement.
(c) . The Paries have prepared two (2) sets of the Project Approvals and
Applicable Rules , one (1) set for City and one (1) set for Developer. Ifit becomes necessar in
the future to referto any of the Project Approvals or Applicable Rules , the contents of these sets
are presumed for all purosesofthis Development Agreement , absent clear clerical error or
similar mistake , to constitute the Project Approvals and Applicable Rules.
3.4.Changes in Regional. State or Federal Laws . A change in the
Applicable Rules or a provision of a Futue Rule which conflcts with the Vested Elements shall
nonetheless apply to the Propert if such change or Futue Rule is mandated or reasonably
necessar to comply with or carr out regional, laws or regulations ("Regional Law ).. state
and federallaws , regulations or binding policies ("Federal Law ' and "State Law ), t g into
consideration, among other things the assurances provided to Developer under this. Development
Agreement and the purose and intent oftheVested Elements. In the event ofthe application of
such a change in law , the Parties shall meet in good faith to determine the feasibility of any
modification or suspension that may be necessary to comply with such new law or regulation and
to determine the effect such modification or suspension would have on the puroses and intent of
this Development Agreement and the Vested Elements. Following the meeting between the
Parties , the provisions of this Development Agreement may, to the extent feasible , and upon
mutual agreement of the Parties , be modified or suspended but only to the minimum extent
11.
necessary to comply with such new law or regulation. In such an event, this Development
Agreement together with any required modifications shall continue in full force and effect.
the event that the change in Federal Law , State Law or Regional Law operates to frustrate
irremediably and materially the vesting of development rights to the Project as set forth in this
Agreement , Developer may terminate this Agreement. In addition , Developer shall have the
right to challenge (by any method , including litigation) the Regional Law , State Law or Federal
Law preventing compliance with or performance of the terms of this Development Agreement
and, in the event that such challenge is successful , this Development Agreement shaH remain
unmodified and in full force and effect , unless the Paries mutually agree otherwise , except that
if the Term of this Development Agreement would otherwise terminate during the period of any
such challenge and Developer has not commenced with the development ofthe Project in
accordance with this Development Agreement as a result of such challenge , the Term shall be
extended for the period of any such challenge.
3.4.4 Expansion of Development Rights . If any future local , Regional
Law , State Law or Federal Law expands , extends , enlarges or broadens Developer ' srights to
develop the Project , then , (i)if such law is mandatory, the provisions of this Development
Agreement shall be modified as may be necessary to comply or conform with such new law , and
(ii) if such law is permissive , the provisions of this Development Agreement shall be modified
upon the mutual agreement of Developer and City, as may be necessary to comply or conform
with such new law. Immediately after enactment of any such new law , the Parties shall meet and
confer in good faith fora period not exceeding sixty (60)days (unless such period is extended by
mutual wrtten consentofthe Parties) to prepare such modification. Developer shall have the
right to challenge City s refusal to apply any new law mandating expansion of Developer s rights
under this Development Agreement , and in the event such challenge is successful , this
Development Agreement shall be modified to comply or conform with the new law.
3.4.Conflcts . In the event of an irreconcilable conflict between the
provisions ofthe Project Approvals (on the one hand) and the Applicable Rules (on the other
hand), the provisions ofthe Project Approvals shall apply; provided however , that as set forth in
Section 6.4 , as Project Approvals are amended as provided in this Development Agreement, the
Vested Elements as defined.inthis Development Agreement are deemed.hereby to be
automatically amended to reflect such amendments. In the event of a conflct betweenthe
Project Approvals (on the one hand) and the Development Agreement , in particular , (on the other
hand), the provisions of the Development Agreement shall control.
Processing Subsequent Approvals
Processing of Subsequent Approvals . Inconsideration of
Developer entering into this Development Agreement, City agrees thatit will accept , make
completeness determinations , and process , promptly and diligently, all applications for
Subsequent Approvals , in accordance with the terms of this Development Agreementand the
Joint Implementation Agreement , notwithstanding any changes to processing procedures as a
result of Future Rules. City and Developer agree that the procedures applicable to amendments
of the Master Plan or Development Plans shall be as set forth in the Development Agreement
the Joint Implementation Agreement and the Applicable Zoning Ordinance for the MX
Mixed Use Planned Development District , notwithstanding any subsequent changes by Future
l2.
Rules to the Applicable Zoning Ordinance for the MX , Mixed Use Planned Development
District , unless the Parties agree otherwise in writing. City will use its best efforts to anticipate
and communicate to Developer issues and concerns that may arise in connection with any
application prior to the application submittal if possible and as early as feasible in the permit
process. Developer will use its best efforts to keep City informed of development applications as
they mature , and anticipate and communicate issues of mutual concern prior to submittal of
permit applications. City agrees that the scope of the review of applications for Subsequent
Approvals shall be limited to a review of substantial conformity with the Vested Elements and
the Applicable Rules (except as otherwise provided by Section 3.4), and compliance with CEQA.
Where such substantial conformity/compliance exists , City shall not deny an application for a
Subsequent Approval.
5.2 FISC/East Housing Permit Processing . City and CIC have entered
into the JointImplementationAgreement, attached hereto as Exhibit F . The Joint
Implementation Agreement is deemed a Project Approval. The Joint Implementation Agreement
provides for centralized review , sets forth normative time frames for all major permits for the
Project (including the Demolition and the Backbone Infrastructure), and provides for the
commitment of the financial resources and personnel necessary to achieve and maintain the time
frames through establishment ofa "Project Administration Offce " (as definedintheJoint
Implementation Agreement). City covenants that it shall cause the timely. performance of all
necessary City agencies to fulfill their obligations under the Joint Implementation Agreement.
City acknowledges and agrees that the Joint Implementation Agreement is entered into for the
benefit of City and CIC and for the express benefit of Developer, that Developeris entitled to
rely on the Joint Implementation Agreement , receive benefits conferred by the Joint
Implementation Agreement and enforce any provision ofthe Joint Implementation Agreement
against any par to the extent that such provision may impact Developer, the Project (including
the Demolition and the Backbone Infrastructure) or the Project Approvals. City agrees that
Developer shall be a third party beneficiary to the JointImplementation Agreement and that City
shall not amend the Joint Implementation Agreement without the prior wrtten consent of Master
Developer, not to be umeasonably withheld. Terminationofthe Joint Implementation
Agreement shall not affectthe Term or the continuing validity of the Development Agreement.
Project Administration Office . City agrees to establish and
maintain the Project Administration Offce under the terms ofthe Joint Implementation
Agreement. At the election of Developer , either: (a) Developer shall pay City expedited
processing fees . (asset forth in Section 3 .2 herein) in processing Subsequent Approvals; or
(b) City or CIC may charge and collect from Developer fuds sufficient for reimbursement for
the actual and reasonable costs incurred by the CIC Project Administration Offce (excluding any
and all costs of the Project Administration Offce itself identified in Section 3.5.3(i)) in
processing Subsequent Approvals (excluding Demolition and Backbone Infrastrctue) for the
Project. The tenus for such reimbursement shall be set forth in detail in a Joint Implementation
Agreement Operating Memorandum ("JIAOperating Memorandum ), as described further in the
Joint Implementation Agreement , to be entered into and executed no later than sixty (60) days
after the Agreement Date , the terms of which must be reasonably acceptable to City, CIC and
Developer and shall include the following concepts:
13.
(i) Reimbursement for services performed and costs incurred by the
Project Administration Office in processing Subsequent Approvals for the Project (but not for
the Demolition or the Backbone Infrastructure) shall be computed based upon the terms set forth
in the JointImplementation Agreement and shall in all cases reflect the City s or CIC's actual
cost , with no surcharge or premium assessed to Developer by City or CIC; provided , however
Developer shall not be responsible for reimbursement of any services performed or associated
with the establishment , staffng and operation of the Project Administration Office but shall be
responsible for reimbursement for services performed by staff members of other City
deparments and by outside consultants in connection with review of Subsequent Approvals
(excluding Backbone Infrastructure and Demolition) at the rates to be set forth in the JIA
Operating Memorandum.
(ii) Reimbursement for such eligible services performed shall be paid
to City or CIC by Developer after receipt and approval by Developer of invoices setting forth in
detail the services performed , the bilable time spent , and theidentityofthe responsible staff
person or outside consultant. No more than thirty (30) calendar days after receipt of the invoice
from City or CIC , Developer shall transmit its approval , partial approval or disapproval of said
invoice to City or CIC. Developer shall only disapprove of said invoice or any portion thereof if
there is amaterial item in dispute. Developer shall have thirty (30) calendar days after approval
of the invoice to transmit payment of said invoice to City or CIC. Developer shall not be
obligated to pay any disputed portion until the dispute is resolved and the Project Administration
Office will continue to ensure that Subsequent Approvals are processed in accordance with the
terms ofthe Joint Implementation Agreement during the pendency of the resolution of the
dispute.
(iii) Records shall be established and maintained by City or CICwith
respect to its costs associated with processing all Subsequent Approvals , on terms to be agreed
upon in the JIA Operating Memorandum.
(iv) Developer shall be permitted to audit and examine all cost records
relating to the City s or CIC's invoices for reimbursement by Developer under this Section , on
terms to be agreed upon in the JIA Operating Memorandum.
(v) Ifany audit reveals inaccuracies in the City s or CIC's billngs , the
necessary adjustments to correct the inaccuracy shall be made promptly, and payment .of those
portions of the bil as to which inaccuracies have been revealed shall be withheld durng the
period necessar to correct the inaccuracies , on terms to be agreed upon in the JIA Operating
Memorandum.
(vi) Payment by peveloper of undisputed amounts within the periods
described above shall constitute a precondition to continued processing of Subsequent Approvals
by the Project Administration Offce but shall not constitute a default under the Development
Agreement and shall not be subject to anual review under Aricle S herein.
14.
Development Fees , Exactions and Conditions
General.All fees , exactions , dedications , reservations or other
impositions to which the Project would be subject , but for this Development Agreement , are
referred to in this Development Agreement either as "Processing Fees " or "Impact Fees.
Processing Fees
. "
Processing Fees " mean fees charged to the
Project to cover thc cost of City review of applications for any permit or other revicw by City
departments. Applications for Subsequent Approvals shall be charged Processing Fees to allow
the Project Administration Office to recover its actual and reasonable costs of processing
Developer s Subsequent Approvals (excluding costs of any Subsequent Approvals for Backbone
Infrastructure and Demolition) with respect to the Project , as set forth in Section 3.
Alternatively, with respect to any element of City review of the Project , Developer may choose
at its sole election, instead to pay City "Expedited Processing Fees " which shall he the then-
applicable current Processing Fees applicable throughout City for expedited processing
(including the cost of retaining a consultant or extra-hire staff and cities customary overhead
costs) and shall not , in any event at any time , be more than Expedited Processing Fees required
for similar expedited approvals , permits and entitlements in City. Notwithstanding any election
by Developer to pay City Expedited Processing Fees in lieu ofthe actual and reasonable costs of
the Project Administration Offce in processing Subsequent Approvals pursuant to Section 3.5.
Subsequent Approvals shall stil be processed through the Project Administration Office.
Notwithstanding anything to the contrary herein, Developer shall not be charged for (or required
to advance and seek reimbursement of) any costs of processing for the Demolition and Backbone
Infrastructure.
Impact Fees
. "
Impact Fees " meansmonetarfees , exactions
dedications , reservations or impositions , other than taxes or assessments , whether established for
or imposed upontheProjectindividually or as par of a class of projects , that are imposed by
City and/or CIC on the Projectinconnection with any Project Approval (inc1udingSubsequent
Approvals) for the Project for any purpose, including, without limitation, defraying all or a
portion of the cost of public services and/or facilities construction, improvement, operation and
maintenance attbutable to the burden created by the Project. Any fee, exaction , dedication,
reservation orimpositionimposed.on the Project which is nota Processing Fee is an Impact Fee.
No Impact Fees shall he applicable to the Project except as provided in this Development
Agreement. City understands that long-term assurances by City concernng Impact Fees were a
material consideration for Developer agreeing to. develop theProj ect, to pay the Impact Fees set
forth in Exhibit F ofthis DevelopmentAgreement and 10 provide the Public Benefits described
in this Development Agreement.
(a) Only the specific Impact Fe s listed in Exhibit F shall apply to the
Project, except as otherwise explicitly permittedhy this Section 3.6.3(a). No change to an
Impact Fee in Exhibit F (other than by the inflator , if any, permitted therein). resultng in an
increase in dollar amounts charged to the Projectthatis adopted after the Agreement Date shall
apply to the Project. If, afterthe Agreement Date , City decreases the rate of any of its Impact
Fees existing as of the Agreement Date , Developer shall pay the reduced ImpactFee in effect at
the time of payment. No Impact Fee other than those listed in Exhibit F may be imposed on the
Project unless it is a fee which meets all of the following criteria: (a) the fee is imposed citywide
l5.
on all single-family residential projects or offce/research and development projects or retail
projects (in which case the fee would be applicable only to the residential or offce/research and
development or retail portions of the Project , respectively) on all new projects on a
nondiscriminatory basis; (b) the fee is not used , directly or indirectly, for new or replacement
transportation infrastructure , utility infrastructure , park facilities or open space acquisition
educational facilities , housing, art or police or fire facilities; (c) the fee meets all nexus tests and
other legal requirements; and (d) the fee is adopted by ordinance by the City or resolution by the
CIC pursuant to a nexus study which , in addition to other legal requirements , calculates the fee
on new development based on a spread ofthe cost ofthe subject facility or facilities or to the
entire population creating the need for or benefitting from the facility, whether that population is
existing or new due to the development , and calculates the fee on new development based solely
on the new development's fair share of such cost spread. City acknowledges that no new fee
may impose on new development the fair share of a facility or repair attributable to or benefitting
the existing population , but City must instead charge such costs to the existing population
through other fiscal devices or find alternative funding sources for such existing population s fair
share.
(b) Developer retains all rights set forth in Governent Code 9 66020.
Nothing in this Development Agreement shall diminish or eliminate any of Developer s rights
set forth in such section.
6.4 Conditions of Subsequent Approvals . No conditions imposed on
Subsequent Approvals shall require public infrastructure or public improvements beyond those
already included in the DDA , the Tentative Map, the Disposition Map, the Master.Plan andthe
MMRP unless expressly permitted by Section 3.4.2(b). In addition , any and all conditions
imposed on Subsequent Approvals must comply with Sections 3.2 and 3.3 herein. In
addition to the above , City agrees that the only conditions it shall impose as conditions on parcel
maps for the Projectare: (l)conditions which it would otherwise have the authority to impose
on lot line adjustments underthe Applicable Rules; or (2) conditions which ensurethe10ts are
adequately configured to provide adequate frontage , internal circulation, cross-easements and
common area maintenance.
Taxes and Assessments . Subject to the provisions of Section 3.6 above, City
may impose new taxes and assessments , other than Impact Fees , onthe Property in accordance
with the then-applicable laws , but only if such taxes or assessments. are adopted by or after
cityide voter or citywide landowner approval of such taxes or. assessments and are equally
imposed on other land andprojectsofthesame category (i., all single-family residential
projects or office/research and development projects or retail projects , in which .case the tax or
assessment would be applicable only to the residential or offcelresearch and development or
retail portion ofthe Project , respectively) within the jurisdiction of City, and, as to assessments
only ifthe impactthereof does not fall disproportionately onthe Propert vis-a-vis the other land
and projects within City s jurisdiction or the portion of City s jurisdiction subject to the
assessment. Nothing herein shall be construed so as to limit Developer from exercising whatever
rights it may otherwise have in connection with protesting or otherwise objecting to the
imposition oftaxes or assessments on the Property.
16.
Life of Project Approvals and Subdivision Maps
Life of Subdivision Maps . The terms of any tentative map in the
Project , any amendment or reconfiguration thereto , or any subsequent tentative map, shall be
automatically extended such that such tentative maps remain in effect for a period of time
coterminous with the term of this Development Agreement.
Life of Other Project Approvals . The term of all otherProject
Approvals (with the exception of design review , use permits , building permits , variances , the
DDA and the Joint Implementation Agreement) shall be automatically extended such that these
Project Approvals remain in effect for a period of time at least aslong as the term of this
Development Agreement. The.terms of use permits , design review , building permits and
varances shall be the longer of one year or the time period permitted by the Applicable Rules or
Future Rules. The term of the DDA shall be the term specified therein. The term ofthe Joint
Implementation Agreement shall be the term specified therein.
Further CEQA Environmental Review
9.1 Reliance on Project EIR.The Project EIR, which has been
certified by City as being in compliance with CEQA , addresses the potential environmental
impacts ofthe entire Project , as it is described in the Project Approvals. Nothing in this
Development Agreement shall be construed to require CEQA review of ministerial Subsequent
Approvals. . It .is agreed that , in acting on any discretionar Subsequent Approvals , City will rely
on the ProjectEIRtosatisfytherequirements ofCEQA to the fullest extent permissible by
CEQA and City wil not require anne\V initialstudy, negative declaration or subsequent or
supplemental EIR unless required by law.
Subsequent CEQA Review . Illthe eventthat any additional
CEQA documentation is legally required for any discretionary Subsequent Approval (other than
any additionalCEQA documentation thatis required as a result of the reverter/non-transfer of
any portion oftheProperty pursuant to the DDA, which .is addn;:ssed in Section 9.4 herein), then
the scope of such documentation shall be focused to the extent possible consistent with CEQA
on the specific subj ect matter of the Subsequent Approval ,. and the City shall conduct such
CEQA review as expeditiously as possible. The. cost and implementation of any additional
mitigation measures .or conditions requiring public improvementsandlorpublic infrastrcture
may be imposed onthe Subsequent Approvals as . a result of such CEQAprocess only to the
extent otherwise permitted by Section 3.6 of this PevelopfientAgreement. Inthe eventthat
CEQAreviewofaSubsequent Approval pursuant to this Section 3.2.identifiesanyadditional
mitigation measures or conditions that are not permitted by Section3.60fthisDevelopment
Agreement, then City or CIC , atitselection shalleither: (a) .implement such mitigation
measures or conditions at no cost and expense to Developer and in an expeditious maner; or
(b) to the extent permitted by law , approve the Subsequent Approval without such mitigation
measures or conditions being required (where such approval creates the requirement for
preparation of an environmental impact report and the adoption of a statement of overrding
considerations , City shall prepare such documentation at no cost and expense to Developer and
in an expeditious manner). City agrees that , if City is not permitted to impose the cost of
mitigation measures or conditions pursuant to Section 3., it shall not instead impose taxes or
l7.
assessments on the Property to cover any portion of the cost of such mitigation measures or
conditions , unless such taxes or assessments are permitted pursuant to Section 3.
3.1 0 Building Regulations
. "
Building Regulations " consist ofthe City
Building, Fire , Plumbing and Mechanical Codes and any ordinances which interpret these codes
where such ordinances establish construction standards that are intended to be applied
ministerially to the construction of improvements on private property (and public infrastructure).
Building Regulations applicable to building and construction throughout the City at the time
Developer applies for the applicable permits for construction of any portion of the Project shall
be applicable to the building and construction authorized by such permit, exceptif such Building
Regulations conflict in any manner with the Vested Elements (as conflctisdefinedin
Section 3.4.2 herein). In the event of such conflict , the paricular Building Regulationwhich is
in conflct with the Vested Elements shall not apply to or govern development or construction of
the Project unless it is determined by City to be required by the most current Uniform Building
Code. In the event of a dispute as to whether or not the paricular Building Regulation in conflict
with the Vested Elements is required by the most current Uniform Building Code , Developer
shall have the right to have the City Council hear such dispute and make a determination
evidenced through findings of fact based onsubstantial evidence as to whether such Building
Regulation is so required by the current applicable Uniform Building Code.
11 Traffc Cap . The EIR for the Project identifies , as a mitigation measure
for cumulative traffic impacts , the imposition of a "traffc cap " to ensure that the traffic
generated by the Project and other cumulative traffc growth does notcausetrafficinthe
Webster/Posey Tubes ("Tubes ) to exceed level of service (LOS) E.. Implementation of the
traffc cap would require development applications for developments other thanthe Project to be
reviewed for the number of peak hour trips that they would generate through the Tubes and
development would only be approved if it would not exceed the capacity in the Tubes , when
added on top .of existing and approved traffc. The Parties agree that, (i) based upon the data in
the certified EIR , the traffc anticipated to be generated by the Project at fuUbuild out , when
added on top of other existing and approved traffic , is within the traffic cap; (ii) the Project shall
notbe required , in connection With any applications for Subsequent Approvals , to demonstrate
compliance with the traffc cap; (iii) in considering applications for other developments from and
after the Agreement Date. City shall administer the traffic cap such that , regardless of the
approval of subsequent development , the traffic cap shall not be applied so as to reduce or
diminish the Vested Elements for the Project; and (iv) Developer s obligation to pay Impact Fees
shall not be increased despite the increased burden offuture approved development on public
facilties. As an example of such administration , but not by way of limitation , City may treat the
entire amount oftrafficprojected in the Project EIR to be generated by the Project as approved
traffic , regardless of whether the full build out of the Project has occurred atthetimeof
subsequent applications for developments other than the Project.
ARTICLE 4
ADDITIONAL OBLIGATIONS OF THE PARTIES
College of Alameda Coordination.City agrees to use its best efforts to (i)
reach agreement with the College of Alameda ("College ) to abandon the College s current
access off of West Campus Drive and to have the College instead take access off of 5th Street;
l8.
and (ii) to coordinate with the College regarding any and all public improvements required in
connection with the Project (including without limitation improvements to the intersection of
Atlantic Avenue and Webster Street) and/or the Tinker Avenue Extension that may affect
property owned or controlled by the College , including without limitation coordinating any
necessary right-of-way acquisition from the College with the College and CIC.
Conveyance of Backbone Infrastructure and Residential Publicly-
Maintained Streets . Upon completion of any and all Backbone Infrastructure and those streets
denominated as Streets A , BandT on the Tentative Map ("Residential Publicly-Maintained
Streets ), Developer wil convey to City, and City shall accept from Developer, the completed
Backbone Infrastructure and Residential Publicly-Maintained Streets , and thereafter City shall
maintain the Backbone Infrastructure and Residential Publicly-Maintained Streets.
Assessment Financing . To the extent that any assessment districts or
community facilities districts are formed to fund the design and construction of the Backbone
Infrastructure or the Demolition , Developer shall not be responsible for the paymentof any such
assessment or special tax obligations , unless otherwise agreed to by Developer in writing. City
or CIC shall be responsible for such payments , unless the Parties mutually agree otherwise in
wrting. City agrees to cooperate with Developer in the formation of any assessment districts
and/or community facilities districts related to the Project as and when so requested by
Developer.
4.4 Eminent Domain Powers . City agrees to cooperate with Developer in
implementing aU of the conditions of all Project Approvals (including Subsequent Approvals),
including but not limited to consideration of the use of its eminent domain powers in connection
with public rights-of-way and public improvements; provided however that the use of eminent
domain shall be in the sole and absolute discretion of City and subject to all applicable legal
requirements.
Public ImprovementslBackbone Infrastructure . City shall use its best
efforts to work with CIC and Developer to ensure that all Backbone Infrastructure in connection
with the Project that is funded , designed and constructed by or on behalf of the CIC is designed
and constrcted in accordance with all applicable City standards , is reviewed and accepted by
City in the most expeditious fashion possible and is maintained by City after acceptance
including, without limitation, maintenance of the public parks shown in the MasterPlan. City
and/or CIC (or their contractor(s)) shallbe responsible for obtaining all permits and approvals
necessar for development of the Backbone Infrastrctue.
Alameda Unifed School District Coordination . City agrees (i) to
implement, in a maner so as to cause no adverse impacts on Developer, the School Agreement
(regarding the conveyance of a portion oftheProperttoAUSD for use by AUSD as an
elementar school and the payment by City to AUSD of fees for use in constrcting such school
to the extent that such fees exceed the fees to be paid by Developer pursuant to the Sterling Act);
(ii) to use its best efforts to cause AUSD to implement the obligations identified in the MMRP as
obligations of AUSD; (iii) to perform , in a manner so as to cause no adverse impacts on
Developer , all of City s obligations pursuant to the School Agreement; and (iv) to ensure that
City and/or CIC pays all fees required under the School Agreement in excess of amounts
19.
required by the Sterling Act. City agrees not to change the location of the School Site from that
set forth in the School Agreementor otherwise modify any other term therein which could have
an adverse impact on Developer without the prior written consent of Master Developer (such
consent to be at the reasonable discretion of Master Developer).
Housing Agreement . City agrees: (i) to implement, in a manner so as to
cause no adverse impacts on Developer , the Housing Agreement (regarding the conveyance of
the Multi-Family Housing Site , the construction by the Alameda Housing Authority of the thirty-
nine (39) units of very low income housing on such property, and the payment by City and/or
CIC and the Alameda Point Collaborative of the costs of construction of such units in excess of
the fees paid by Developer for very low income housing pursuant to Section 3.3); (ii) to
perform , in a manner so as to cause no adverse impacts on Developer , all of City s obligations
pursuant to the Housing Agreement; and (iii) not to change the location of the Multi-Family
Housing Site from those locations identified in the Housing Agreement or otherwise modify any
term in the Housing Agreement which could have an adverse impact on Developer without the
prior written consent of Master Developer (such consent to be at the reasonable discretion of
Master Developer).
Port of Oakland . City agrees to implement , in a manner so as to. cause no
adverse impacts on Developer , the Port Agreement (regarding the amount and location of FISC
land and/or facilities to be acquired by the Port in connection with its turing basin project);
(ii) to use its best efforts to obtain the Port's agreement that the Port will coordinate construction
ofthe turning basin with Developer in order to avoid interference with the development of the
Proj ect to the maximum extent feasible; and (iii) not to change the location of the Port Property
from that set forth in the Port Agreement or otherwise modify any term in the Port Agreement
which could have an adverse impact on Developer without the prior written consent of Master
Developer (such consent to beat the reasonable discretion of Master Developer).
Compliance With Mitigation Monitoring Reporting Program ("MMRP"
City shall comply with its obligations identified inthe MMRP,attachedhereto as Exhibit G
10 Subsequent Actions . City covenants that it wil undertake , or cause CIC
to undertake and diligently complete: (a) all actions or proceedings necessary or appropriate to
the continued fulfillment ofthe objectives of the Alameda Point Improvement Plan ("APIP"
BWIP and Project Approvals; and (b) any and all amendments to the General Plan , APIP , and
BWIP necessar to ensure on-going consistency among the General Plan , APIP , BWI and the
Project Approvals (including, but not limited to , adjustments resulting from the operation of
Sections 1.2., 1.2.3 and 3.11 herein).
11 Acquisition and Funding Agreement.City covenants that it shall
undertake to enter into the Acquisition and Funding Agreement with Developer and CIC
described in the DDA.
12 Maps . City shall file and record , or shall cause CIC to fie and record
within the times set forth in the DDA: the Disposition Map that is a condition precedent to
Developer s acceptance of Business Park Conveyance Parcell pursuant to Section 4.12.8 of the
20.
DDA; and the Tentative Map and the Final Map that is a condition precedent to Developer
acceptance of Residential Conveyance Parcell pursuant to Section 4.1l.8 of the DDA.
13 Adjustment in Boundaries.Developer shall have the right to adjust the
boundaries of the Conveyance Parcels (as defined in the DDA) at any time through a lot line
adjustment in accordance with Section 2.1.1 and 2.1 ofthe DDA.
14 Multi-Family Housing Site . If, pursuant to the Housing Agreement
the Multi-Family Housing Site is relocated to the Alternative Multi-Family Housing, the City
shall diligently undertake , at the CIC's or the City s expense , all actions or proceedings
necessary to issue or obtain aU entitlements including, but not limited to , a General Plan
Amendment , that are necessary to include the former Multi-Family Housing Site in the Business
Park. Upon the re-entitlement of the former Multi-Family Housing Site as provided above , the
former Multi-Family Housing Site shall be added to the Business Park Land and Developer shall
have the right to acquire such Multi-Family Housing Site in accordance with the DDA.
Developer does not acquire the former Multi-Family Housing Site , then neitherthe CIC nor the
City shall use or permit the former Multi-Family Housing Site to be used for land uses that are
inconsistent with the Business Park and the Residential Project.
ARTICLE 5
ANNUAL REVIEW
Annual Review . The annual review required by California GovernentCode
Section 6586S.1 and Section 30-95.1 of the Alameda Municipal CodeshaUbe conducted for the
puroses and in the maner stated inthose laws as further provided herein. . As par ofthat
review , City, Master Developer and any other Developer shall have a reasonable opportunity to
assert action(s) which either Party believes have notbeen undertaken in accordance with this
Development Agreement , to explain the basis for such assertion , and to receive from the other
Par ajustification for the other Party s position with respect to such action(s), and to take such
actions as permitted by law. Theproceduresetforth in this article shall be used by Master
Developer, any other Developer and Cityin.complyingwiththe anual review requirement. City
and Developer agree that as between MasterDeveloper and any other Developer that Master
Developer shall be responsible for taking the lead in coordinating submission of documents
required pursuant to this Aricle 5 but.that the anual review process is intended to review
compliance by Master Developer and any other Developer and City with the obligations under
the Development Agreement. The City.and Developeragreethatthe anual review process shall
review compliance by Master Developer and anypther Developer and City with the obligations
under the Development Agreementbut shall not review compliance with other Project
Approvals. A default by any Developer (including Master Developer) under this Development
Agreement shall not constitute a default by any other Developer (including MasterDeveloper)
and shall notresult in: (a) any remedies imposed against any Developer not in default under this
Development Agreement; or (b) termination of this Development Agreement against portions of
the Propert to which the default under this Development Agreement does not apply.
. 5.Commencement of Process.The Joint Implementation Agreement provides
that the Project Administration Offce shall commence the annual review process by notifying
21.
City and Master Developer in writing at least forty-five (45) days prior to the anniversary of the
Effective Date each year that the annual review process shall commence as specified in Section
l. The Project Administration Offce notice shall be deemed to fulfill the applicant's
responsibility as stated in Section 30-95.1(a) of the Alameda Municipal Code. Failure of the
Project Administration Office to send such notification shall be deemed to. extend the time period
in which annual review is required until at least. forty-five (45) days after such notice is provided.
Master Developer Compliance Letter . Not less than thirty (30) days aftcr
receipt of the Project Administration Offce s notice pursuantto Section 5., Master Developer
shall submit a letter to the Director of City s Department of Planning ("Planning Director
demonstrating Master Developer s and any other Developer s good faith compliance with the
material terms and conditions of this Development Agreement (but not the. other Project
Approvals) and shall include in the letter a statement that the letter is being submitted to City
pursuant to the requirements of Govemment Code Section 6586S.1.
5.4 Planning Director Review . Within thirty (30) days after the receipt of
Master Developer s letter, the Planning Director shall review Master Developer s submission
and determine whether Master Developer and any other Developer have , for the year under
review , demonstrated good faith compliance with the material terms and conditions of this
Development Agreement.
Planning Director Compliance Finding . If the Planning Director finds that
Master Developer and any other Developer have so complied , the Planning Director shall
schedule the anual.review for the next available meeting of the Planing :Board and shall
prepare a staff report to the Planning Board which shall include, in addition to Master
Developer s letter, (i). a demonstration of City s good faith compliance with the material terms
and .conditions ofthis Development Agreement; and (ii) the Planning Director s recommendation
that the Planng Board. find Master Developer and any other Developer to be in good faith
compliance with the material terms and conditions of this Development Agreement.
Planning Director Non-Compliance Finding . IfthePlaning Director (or
the Planing Board , on review ofthePlanningDirector srecommendationpursuantto Sec-
tion 5.5) finds and determines that there is substantial evidence that Master Developer or any
other Developer has not complied in good faith with the material terms and conditions ofthis
DevelopmentAgreement and that Master Developer or any other Developer is in material breach
of this Development Agreement for the year under review, the Planng Director shalLissueand
deliver to the paricular entity allegedly in default (with a copy to Master Developer if Master
Developer is not the entity allegedly in defalllt) a wrtten "Notice of I)efault" specifying in detail
the grounds therefor, the identity ofthe paricular Developer which is not in compliance and all
facts demonstrating substantial evidence of material noncompliance on apoint-by-point basis. In
the event that the material breach is an Event of Default pursuant to Aricle? herein , the Paries
shall be entitled to their respective rights and obligations. under both Aricles S. and 7 herein
except that the particular entity allegedly in default shall be accorded only one of the 60-day cure
periods referred to in Sections 5.7 and 7.1 herein.
Cure Period . If the Planning Director finds that Master Developer or any
other Developer is not in compliance it shall grant a reasonable period of time for the particular
22.
entity allegedly in default to cure the alleged default or , at the sole election of the Master
Developer , for the Master Developer to cure the alleged default of any other Developer. The
Planning Director shall grant a cure period of at least sixty (60) days and shall extend the sixty
(60) day period if the particular Developer allegedly in default is proceeding in good faith to cure
the noncompliance and additional time is reasonably needed. At the conclusion of the cure
period , the Planning Director may either (a) find that Master Developer and any other Developer
is in compliance and refer the matter to the Planning Board as specified in Section S.5; or
(b) find that a particular Developer is not in compliance and refer the matter to the Planning
Board as specified in Section 5.
Referral of Default to Planning Board . The Planing Director shall refer
the alleged default to the Planning Board if the particular Developer allegedly in default fails.to
cure the alleged default to the Planning Director s reasonable satisfaction during the prescribed
cure period and any extensions thereto. The Planning Director shall refer. the alleged default to
the Planing Board if the particular Developer allegedly in default requests a hearng before the
Planing Board. The Planning Director shall prepare a staff report.to .the Planing Board which
shall include , in addition to Master Developer s letter , (a) demonstration of City's good faith
compliance with the terms and conditions ofthisDevelopment Agreement; (b) the Notice of
Default; and (c) a description of any cure undertaken by the particular Developer allegedly in
default during the cure period.
Delivery of Documents . At least five (5) days prior to any City hearing
regarding Master Developer or any other Developer s compliance with this Development
Agreement , City shall deliver to Master Developer staff reports and all other relevant documents
pertaining to.the hearing on the Project.
10 Planning Board Compliance Finding . If the Planing Board , following
a noticed public hearngpursuantto SectionS.S or S., determines that Master Developer and
any other Developer are incompliance with the material terms and conditions of this
Development Agreement , and that determination is. not appealed to the City Council ,. the anual
review shall be deemed concluded. City shall , at Master Developer s request , issue and have
recorded a Certificate.of Compliance indicating Master Developer and any other Developer
compliance with the termsofthisDevelopment Agreement.
11 Planning Board Non-Compliance Finding; Referralto City Council
Ifthe Planng Board, at a properly noticed public hearng pursuantto Section S.50r 5., finds
and determnes , on the basis of substantial evidence , that Master Developer or .any other
Developer has not complied ingoodfaith with the materialterms or conditions of this
Development Agreement and that .aparicular. Developer is in material breach .of this
Development Agreement , the paricular Developer in allegeddefaultshallhave areasonable
time determined by the Planing Board to meet the reasonable terms of compliance approved by
the Planing Board, which time. shall he not less than fifteen (l5)days. If the paricular
Developer allegedly in default does not complete the terms of compliance within the time
specified , the Planing Board shall forward its recommendations to the City Council and the City
Council shall hold a public hearing regarding termination or modification of this Development
Agreement with respect to the particular Developer in default. Notification of intention to
modify or terminate this Development Agreement with respect to such particular Developer in
23.
default shall be delivered to Master Developer and the particular Developer in default (if other
than Master Developer) by certified mail containing: (i) the time and place of the City Council
hearing; (ii) a statement as to whether City proposes to terminate Of modify this Development
Agreement with respect to the particular Developer in default and the terms of any proposed
modification; and (iii) any other information reasonably necessary to inform Master Developer
and the particular Developer in default (if other than Master Developer) of the nature of the
proceedings. At the time of the hearing, Master Developer and the particular Developer in
default (if other than Master Developer) shall be given an opportunity to be heard. The City
Council may impose conditions to the action it takes as necessary to protect the interests of City;
provided that any modification or termination of this Development Agreement pursuant to this
provision shall be proportional in severity to the magnitude of the alleged breach and in no event
shall termination be permitted exceptin accordance with Aricle 7 herein.
12 Relationship to Default Provisions . The above procedures .shall
supplement and shall not replace that provision of Section 7.4 of this Development Agreement
whereby either City or Developermay, at any time , assert matters which either Party believes
have not been undertaken in accordance with this Development Agreement by delivering a
written Notice of Default and following the procedures set forth in said Section 7.4.
ARTICLE 6
AMENDMENTS
Amendments to Development Agreement Legislation . This Development
Agreement has been entered into in reliance upon the provisions oftheDevelopment Agreement
Legislation as those provisions existed at the Agreement Date of this Development Agreement.
No amendment or addition to those provisions which would materially adversely affect the
interpretation or enforceability of this Development Agreement or. would prevent or preclude
compliance with one or more provisions of this Development Agreement shall be applicable to
this Development Agreement unless such amendment or addition is specifically required by the
change in law , or is mandated by a court of competent jurisdiction. In the event of the
application of such a change in law , the Paries shallmeetin good faith to determine the
feasibility of any modification Of suspension that may be necessar to comply with such new law
or regulation and to determine the effect such modification or suspension would have on the
puroses and intent of this Development Agreement and the Vested Elements. Following the
meeting between the Parties , the provisions of this DevelopmentAgreement may, to the extent
feasible, and upon mutual. agreement of the Parties , be modified or suspended but only to the
minimurextentnecessar to comply with such new law or regulation. If such amendment or
change is permissive (as opposed to mandatory), this Development Agreement shall not be
affected by same unless the Paries mutually agree in wrting to amend this Development
Agreementto permit such applicability.
Amendments to or Cancellation of Development Agreement.This
Development Agreement may be amended from time to time or canceled in whole or in part by
mutual consent of both Paries or their successors-in-interest or assigns in writing in accordance
with the provisions ofthe Development Agreement Legislation and the City Development
Agreement Regulations. Review and approval of an amendment to this Development Agreement
shall be strictly limited to consideration of only those provisions to be added or modified. No
24.
amendment , modification , waiver or change to this Development Agreement or any provision
hereof shall be effective for any purpose unless specifically set forth in a writing which expressly
refers to this Development Agreement and is signed by the duly authorized representatives of
both Parties , their successors or assigns. All amendments to this Developmcnt Agrcement shall
automatically become part of the Project Approvals.
Operating Memoranda . The provisions of this Development Agreement
require a close degree of cooperation between City and Developer and development of the
Property hereunder may demonstrate that refinements and clarifications are appropriate with
respect to the details of performance of City and Developer. If and when , from time to time
during the term of this Development Agreement , City and Developer agree that such
clarifications are necessary or appropriate , City and Developer shall effectuate such clarifications
through operating memoranda approved by City and Developer, which , after execution , shall be
attached hereto as addenda and become a part hereof, and may be further clarified from time to
time as necessary withfuture.approval by City and Developer. No such operating memoranda
shall constitute an amendment to this Development Agreementrequiring public notice or
hearing. The City Manager , in consultation with the City Attorney, shall make the determination
on behalf of City whether a requested clarification may be effectuated pursuant to this
Section 6.3 or whether the requested clarification is of such a character to constitute an
amendment hereof pursuant to Section 6.2 above. The City Manager shall be authorized to
execute any operating memoranda hereunder on behalf of City.
6.4 Amendments to Project Approvals (Including Subsequent Approvals)
Notwithstanding any other provision of this Development Agreement , Developer may seek and
City may review and grant amendments or modifications to the Project Approvals (including the
Subsequent Approvals) subject to the following ( except thattheprocedures for amendment of
this Development Agreementare set forth in Section 6.2 herein , and the procedures for
amendment ofthe DDA are set forth in the DDA):
6.4.Variation Permitted by Master Plan . Upon written application by
Developer, the Planing Director or the Director ofthe City of Alameda Departent of Public
Works ("Public Works Director ) may agree to certain modifications in the Project , including
without limitation varations in configuration , location , use and sequencing, in accordance with
the procedures in the Master Plan. City acknowledges that the modifications permitted by the
Master Plan subject to the approval ofthe PlaningDirector or the Public Works Director are
consistent with the Master Plan and do not constitute an iamend.entto this Development
Agreement, the Vested Elements or the Project Approvals.
6.4.Amendments to.Project.Approvals.(lncluding Subsequent
Approvals)ProjectApprovals (except for this Development Agreement the amendment process
for which is set forth in Section 6.2) maybe amended or modified from time to time , but only at
the written request of Developer or with the written consent of Developer (at its sole discretion)
and in accordance with Section 3.4. All amendments to the Project Approvals shall
automatically become part ofthe Project Approvals. The permitted uses of the Property, the
maximum density andlornumber of residential units , the intensity of use , the maximum height
and size of the proposed buildings , provisions for reservation or dedication of land for public
purposes , the provisions for public improvements and financing of public improvements , and the
25.
terms and conditions of all such amendments shall be automatically vested pursuant to this
Development Agreement , without requiring an amendment to this Development Agreement.
Amendments to the Project Approvals shall be governed by the Project Approvals (including the
Joint Implementation Agreement) and the Applicable Rules , subject to Section 3.4.
6.4.Administrative Amendments . Upon the request of Developer for
an amendment or modification of any Project Approval , the Planning Director or his/her
designee shall determine: (i) whether the requested amendment or modification is minor when
considered in light of the Project as a whole; and (ii) whether the requested amendment or
modification substantially conforms with the material terms of this Development Agreement.
the Planning Directororhis/her designee finds thattherequested amendment or modification is
both minor and substantially conforms with the material terms of this Development Agreement
and with the approved Development Plan (except if itis the Development Plan which.is subject
to the amendment), if applicable , the amendment or modification shall be determined to be an
Administrative Amendment " and the Planning Director or his/herdesignee may approve the
Administrative Amendment , providing the same public notice required for a public hearing and
action but may take action administratively without holding a public hearing. . In those instances
where the Planning Director believes an application for administrative amendment wil. generate
significant public interest or significant policy issues , the Planning Directormay refer the
application to the Planning Board for review and action. Each decision made by the Planing
Director pursuant to delegated authority in accordance with this.Sectionshall be placed .as an
information item on the Planning Board agenda together with a summary of the Administrative
Amendment. Ifthe Planning Director receives a written request fora Planning Board public
hearing and action by the Planning Board any time during the review process but no later than
ten (1 0) days after the action of the Planning Director , or at the Planning Board meeting for
which the information item is on the agenda , then the Administrative Amendment shall be set for
Planing Board public hearing and action. Without limiting the generality of the foregoing, lot
line adjustments , substitution of comparable landscaping for any landscaping shown on any
development plan or landscape plan , variations in the location or installation of utilities and other
infrastructure connections and facilities that do not substantially alter design concepts of the
Project , amendments to the master sign program , and minor adjustments to the Tentative Map or
Disposition Map or the Property legal description shallbe deemed to be minor amendments or
modifications.
ARTICLE 7
DEFAULT,REMEDIES. AND TERMINATION
Events of Default . Subject to any extensions of time by mutual consent of
the Paries in wrting, and subj ectto the provisions of Section 11.2 hereof regarding permitted
delays and a mortgagee s right to cure pursuantto Section 10.3 hereof, any failure by either Pary
to perform any material term or provision of this Development Agreement (not including any
failure by Developer to perform any term or provision of any other Project Approvals) shall
constitute an "Event of Default ". (i) if such defaulting Party does not cure such failure within
sixty (60) days (such sixty (60) day period is not in addition to any (60) day cure period under
Section S., if Section 5.7 is applicable) following written notice of default from the other Party,
where such failure is of a nature that can be cured within such sixty (60) day period , or (ii) if
such failure is not of a nature which can be cured within such sixty (60) day period , the
26.
defaulting Party does not within such sixty (60) day period commence substantial efforts to cure
such failure , or thereafter does not within a reasonable time prosecute to completion with
diligence and continuity the curing of such failure. Any notice of default given hereunder shall
specify in detail the nature of the failures in performance which the noticing Party claims
constitutes the Event of Default and the manner in which such failure may be satisfactorily cured
in accordance with the terms and conditions of this Development Agreement. Any notice of
default sentby City to any Developer other than Master Developer shall also be copied to Master
Developer. During the time periods herein specified for cure of a failure of performance , the
Pary charged therewith shall not be considered to be in default for purposes of (a) termination of
this Development Agreement , (b). institution of legal proceedings with respect thereto , or
(c) issuance of any approval with respect to the Project. The waiver by either Party of any
default under this Development Agreement shall not operate as a waiver of any subsequent
breach of the same or any other provision of this Development Agreement.
Meet and Confer.During the time periods specified in Section 7.1 for cure
of a failure of performance, the Parties shall meet and confer in a timely and responsive maner
to attempt to resolve any matters prior to litigation or other action being taken , including without
limitation any action in law or equity; provided , however, nothing herein shall be construed to
extend the time period for this meet and confer obligation beyond the 60-day cure period referred
to in Section 7 .2 (even if the 60-day cure period itself is extended pursuant to Section 7.1 (ii))
unless the Parties agree otherwise in writing.
Remedies and Termination . If after notice and expiration of the cure
periods and procedures set forth in Sections 7.1 and 7., the alleged Event of Default is not
cured, the non-defaulting Pary, at its option , may institute legal or arbitration proceedings
pursuant to Sections 7.4 or 7.6 of this Development Agreement and/or terminate this
Development Agreement pursuant to Section 7.7 herein. In the event that this Development
Agreement is terminated pursuant.to Section 7.7 herein and litigation, mediation or arbitration is
instituted which results in a final decision that such termination was improper, then this
Development Agreement shall immediately be reinstated as though it had never been terminated.
A defaultby any Developer (including Master Developer) under this Development Agreement
shall not constitute adefaulfby any other Developer (inc1udingMasterDeveloper) and shall not
result in: (a) remedies imposed against any Developer not in default; or (b) termination of the
Development Agreement.against portions of the Property to which the default does not apply.
Master Developer shall have the right but not the obligation to cure defaults by any other
Developer hereunder.
Legal Action by Parties
7.4.Remedies . Either Par may, in addition to any other rights or
remedies , institute legal action to cure , correct or remedy any default enforce any covenantor
agreement herein , enjoin any threatened or attempted violation thereof, enforce by specific
performance the obligations and rights of the Parties hereto or to obtain any remedies consistent
with the purpose of this Development Agreement. All remedies shall be cumulative and not
exclusive of one another, and the exercise of anyone or more of these remedies shall not
constitute a waiver or election with respect to any other available remedy. Without limiting the
foregoing, Developer reserves the right to challenge in court any change to the Applicable Rules
27.
or provision of Future Rules that would conflct with the Vested Elements or the Subsequent
Approvals or reduce the development rights provided by the Project Approvals.
7.4.No Damages . In no event shall either Party, or its boards
commissions , officers , agents or employees , be liable in damages for any default under this
Development Agreement , it being expressly understood and agreed that the sole legal remedy
available to either Party for a breach or violation ofthis Development Agreement by the other
Party shall be an action in mandamus , specific performance or other injunctive or declaratory
relief to enforce the provisions of this Development Agreement by the other Party, or to
terminate this Development Agreement. This limitation on damages shall not preclude actions
by a Party to enforce payments of monies or the performance of obligations requiring an
obligation of money from the other Party under the terms of this Development Agreement
including, but not limited to obligations to pay attorneys ' fees and obligations to advance monies
or reimburse monies. In connection with the foregoing provisions , each Party acknowledges
warrants and represents that it has been fully informed with respect to , and represented by
counsel of such Party s choice in connection with, the rights and remedies of such Party
hereunder and the waivers herein contained, and after such advice and consultation has presently
and actually intended, with full knowledge of such Party s rights and remedies otherwise
available atlaworinequity, to waive and relinquish such rights and remedies to the extent
specified herein, and to rely to the extent herein specified solely on the remedies provided for
herein with respect to any breach of this Development Agreement by the other Party.
Effects of Litigation . In the event that litigation is timely instituted , and a
final judgment is obtained , which invalidates in its entirety this Development Agreement, then
Developer shall have no obligations 'Whatsoever under this Development Agreement. In the
event that any payment(s) have been made by or on behalf of Developer to City pursuantto the
obligations contained in Section 3., City shall give to Developer a refund of the monies
remaining in any segregated City account into which such payment(s) were depQsited, if any,
along with interest which has accrued , if any. To theextentthe payment(s) made by or on behalf
of Developer were not deposited , or no longer are , in the segregated City account , City shall give
Developer a credit for the amount of said payment(s) as determined pursuantto this Section 7.
along with interest , if any, that has accrued , which credit may be applied by Developer to any
costs or fees imposed by City on Developer in connection with construction or development
within or outside the Property. Developer shall be entitled to use all or any portion of the credit
at its own discretion until such time. as . the credit has been depleted. Any credits due to
Developer pursuant to this Section 7.5 may, at Developer s own discretion, be transferred by
Developer to a third party for application by said third party to any costs or fees imposed by City
on the third pary in connection with constrction or the development of propert within City,
whether or not related to the Project. In the event that Developer has already developed or is
developing a portion ofthe Project atthe time of any invalidation of the Development
Agreement , then any such refund or credit shall be limited to the amount paid by Developer
which exceeds , on a pro rata basis , the proportion and uses of the Property retained by Developer
to the entire Property. This Section 7.5 shall survive the termination of this Development
Agreement.
28.
Arbitration . Upon the mutual agreement by both Parties , any legal action
shall be submitted to non-binding arbitration in accordance with rules to be mutually agreed
upon by the Parties.
7 Termination.
Expiration of Term . Except as otherwise provided in this
Development Agreement , this Development Agreement shall be deemed terminated and of no
further effect upon the expiration of the Term of this Development Agreement as set forth in
Section 1.3.
Survival of Obligations . Upon the termination of this
Development Agreement as provided herein , neither Party. shall have any fuher right
obligation with respecttothe Property under this Development Agreement except with respect to
any obligation which is specifically set forth as surviving this Development Agreement. The
termination of this Development Agreement shall not affect the validity of the Project Approvals
(other than this Development Agreement) or Subsequent Approvals.
Termination by City . Notwithstanding any other provision ofthis
Development Agreement(except for the release of the Multi-Family Housing Site , the School
Site and the Port Propertypursuantto Section 1.2.2 herein), City shall not have the right to
terminate this Development Agreement with respect to all or any portion of the Property before
the expiration of its Term unless City complies with all termination procedures set forth in the
Development Agreement.Legislation and either: (a). there is. an alleged Event of Default by
Developer and such Event of Default is not cured pursuant to Aricle 5 herein or this Aricle 7
and Developer has first been afforded an opportunity to be heard regarding the alleged default
before the City Council and the Development Agreement is terminated only with respect to that
portion ofthe Property to which the default applies; or (b) termination occurs pursuant to Section
9.4 herein.
ARTICLE 8
COOPERATION AND IMPLEMENTATION
Further Actions and Instruments . The Paries to this Development
Agreement shall cooperate with and provide reasonable assistance to the other Part and take all
actions necessar to ensurethatthePariesreceive the benefits of this Development Agreement
subject to satisfaction ofthe conditions ofthisDevelopmentAgreement. Upontherequest of
any Par, the other Par shall promptly execute , with aCknowledgmentor affidavitif
reasonably required, .and file or record such required instrents and writings and take any
actions as may be reasonably necessarunderthetenns ofthisDevelopment Agreement to car
out the intent and to fulfill the provisions of this Development Agreement or to evidence or
consummate the transactions contemplated by this Development Agreement.
Regulation by Other Public Agencies.It is acknowledged by the Parties
that other public agencies not within the .cntrol of City may possess authority to regulate aspects
of the development of the Property separately from or jointly with City, and this Development
Agreement does not limit the authority of such other public agencies. Nevertheless , City shall be
29.
bound by, and shall abide by, its covenants and obligations under this Development Agreement
in all respects when dealing with any such agency regarding the Property.
Other Governmental Permits and Approvals . Developer or City
(whichever is appropriate) shall apply in a timely manner for the permits and approvals which
may be required from other governental or quasi-governental agencies having jurisdiction
over the Project as may be required for the development of, or. provision of services to , the
Project. City shall cooperate with Developer in its endeavors to obtain such permits and
approvals and shall , from time to time , at the request of Developer , attempt with due diligence
and in good faith to enter into binding agreements with any such entity to ensure the availability
of such permits and approvals , or services , at each stage of the development of the Project.
8.4 Cooperation in the Event of Legal Challenge . In the event of any legal
action instituted by a third party challenging the validity of any provision ofthis Development
Agreement , the procedures leading to its adoption , or the issuance of Project Approvals
(including the Subsequent Approvals) for the Project , Developer andiCity each shall have the
right , in its sole discretion , to elect whether or not to defend such action, to select its own counsel
(and pay for such counsel at its own expense), and to control its paricipation and conduct in the
litigation in all respects permitted by law. If both Parties elect to defend, the Parties hereby
agree to affrmatively cooperate in defending said action and to executeajointdefense and
confidentiality agreement in order to share and protect information , under thejoint defense
privilege recognized under applicable law. As part of the cooperation in defending an action
City and Developer shall coordinate their defense in order to make the most effcient use of legal
counsel andto share and protect information. Developer and City shall each have sole discretion
to terminate its defense at any time. City retains the option to select and employ independent
defense counsel at its own expense. If, in the exercise of its sole discretion
, .
Developer agrees to
pay for defense counsel for City, Developer shall jointly participate in the selection of such
counsel. Notwithstanding the provisions of California GovernmentCode Section 66474.
City shall not require , as a condition for a tentative map application or approval , or any other
applications for Project Approvals , that Developer defend , indemnify or hold harmless the City
from any claim , action or proceeding against the City to attck, set aside , void or annul a City
approval concerning a subdivision.
Revision to Project . In the event of a court order issued as a result of a
successful legal challenge , City shall , to the extent permitted bylaw or court order , in good faith
seek to comply with the court order in such a manner as wil maintain the integrty oftheProject
Approvals (including the Development Agreement and the Subsequent Approvals)and avoid or
minimize to the greatest extentpossible (i) any impact to the development ofthe Project as
provideci for in , and contemplated by, the Vested Elements , or (ii) any conflct with the Vested
Elements or frstrationofthe intent or purpose oftheVested Elements.
ARTICLE 9
TRANSFERS AND ASSIGNMENTS
Right to Assign . Developer shall have the right to sell , assign or transfer in
whole or in part its rights , duties and obligations under this Development Agreement , to any
person or entity at any time during the term ofthis Development Agreement without the consent
30.
of City; provided that those rights and obligations set forth herein as rights and obligations of the
Master Developer may not be so sold , assigned or transferred , except as permitted by the DDA
for assignment by Master Developer of its rights and obligations; provided , however, in no event
shall the rights , duties and obligations conferred upon Developer pursuant to this Development
Agreement be at anytime so transferred or assigned except through a transfer of the Property in
accordance with the DDA. In the event of a transfer of a portion of the Property, Developer shall
have the right to transfer its rights , duties and obligations under this Development Agreement
which are applicable to the transferred portion , and to retain all rights , duties and obligations
applicable to the retained portions ofthe Property.
Release upon Transfer . Upon the sale , transfer or assignment of
Developer s rights and interests under this Development Agreement pursuant to Section 9.
Developer shall be released. from its obligations and liabilities under this Development
Agreement with respectto that portion of the Property sold , transferred or assigned and any
subsequent default or breach with respect to the transferred or assigned rights and/or obligations
shall not constitute a default or breach with respect to the retained rights and/or obligations under
this Development Agreement , provided that (a) Developer has provided to City notice of such
transfer, and (b) the transferee executes and delivers to City a wrtten agreement in which (i) the
name and address of the transferee is set forth and (ii) the transferee expressly and
unconditionally assumes all of the obligations of Developer under this Development Agreement
with respect to that portion of the Property sold, transferred or assigned. Failure to deliver a
wrtten assumption agreement hereunder shall not affect the running of any covenants herein
withthe land, as provided in Section 9.3 below , nor shall such failure negate , modify or
otherwise affect the liability of any transferee pursuant to the provisions of this Development
Agreement.
Covenants Run with the Land . All of the provisions , agreements , rights
powers , standards , terms , covenants and obligations contained in this Development Agreement
shall be binding upon the Paries and their respective successors (by merger, consolidation , or
otherwise) and assigns , administrators , representatives , lessees , and all of the persons or entities
acquiring the Property or any portion thereof, or any interest therein, whether by operation of law
or in any m.aner whatsoever, and shall inure to the benefit ofthe Paries and their respective
successors (by merger, consolidation or otherwise) and assigns. All of the provisions of this
Development Agreement shallbeenforceable as equitable servitudes and constitute covenants
rung with the landpursuanttoapplicable law , including but notlimited to , Section1468of
the Civil Code ofthe. State of California.
..
Each. covenant to do or refrain from doing some act on
the Property hereunder (a ) is for the benefitofsuch Propert and is. a burden upon such Propert,
(b) ruswithsllchPropert, (c)is binding upon each Par and each successive owner during its
ownership of such Propert or any portion thereof, and (d) each person or entity having any
interesttherein derived in any maner through any owner of such Propert, or any portion
thereof, and shall benefit the Property hereunder, and each other person or entity succeeding to
an interest in such Property.
9.4 Community Improvement Commission Exercise of Right of
Reverter/Non-Transfer Under Disposition and Development Agreement.
31.
9.4.Termination: Allocation of Rights and Obligations . In certain
circumstances identified in the DDA: (i) the CIC has aright to terminate the DDA and cease to
transfer certain untransferred portions of the Property to Developer; (ii) Developer has the right
to terminate the DDA and cease acquisition of certain untransferred portions of the Property; or
(iii) the CIC has a right of reverter with respect to certain portions of the Property that have been
purchased by Developer and a right not to transfer certain remaining portions of the Property that
have not been purchased by Developer at the time of exercise of the right. In certain
circumstances , the DDA grants Developer a right offirst negotiation to repurchase/purchase
certain portions of the Property. In the event that the CIC or Developer terminates the DDA with
respect to any portion of the Property or the CIC exercises its right of reverter/non-transfer with
respect to any portion of the Property, and Developer does not repurchase/purchase such portion
of the Property to the extent that Developer has such rights undertheDDA , then (a) this
Development Agreement shall terminate as to such portion of the Property as to Which the DDA
was terminated, and (b) City and Developer shall cooperate in good faith to allocate the rights
and obligations of Developer under the Project Approvals (including this Development
Agreement and Subsequent Approvals).to the portions of the Property retained by Developer (or
which Developer has the right to acquire) based.on the proportion that the size and uses of the
Property retained by Developer (or which Developer has the right to acquire) bear to. the entire
Property. In the event that Developer does repurchase/purchase portions of the Property (to the
extent Developer has such rights under the DDA) and anew Disposition and Development
Agreement is entered into for such portions of the Property, then this Agreement is not
terminated as to such portions of the Property, but the Parties. shall meet and confer to determine
if amendments to this Agreement are necessary in light ofthe new Disposition and Development
Agreement in order to preserve the concepts agreed upon in this Agreement.
9.4.Responsibility for Additional CEQA Review and Conditions:
Limitation on Uses.The Parties acknowledge that , if(i)CICexercisesitsrightofreverter/non-
transfer astoanyportionoftheProperty, (ii) Developer does not repurchase/purchase such
portionoftheProperty ,and (iii) City subsequently approves development of the reverted/non-
transferred portion ofthe Property by City or any third party,itis possible that such approval
could constitute a changeimcircumstances that would trigger additional CEQA review of
discretionar Subsequent Approvals , which could result in the imposition of additional
mitigation measures or conditions on the Project. In the eventthattheCity s approval of
development of the reverted/non-transferred Property triggers additional CEQA review of
discretionary Subsequent Approvals , then (a) City shall undertake the preparation oftheCEQA
documentation and either CityorCIC shall bear the fulLcost of preparation and review of such
CEQA documentation; (b) the scope of such documentation shan be focused , to the extent
possible consistentwithCEQA on the specific subject matter of the changed circumstance;
(c) City or CICshall be responsible (or shallfind.another entity, not Developer, who shall be
responsible) for the full cost and implementation of any mitigation measures or conditions
imposed on the Subsequent Approval as a result of such CEQAprocess or inthealtemative
City, to the extent permitted by law , shall approve the Subsequent Approval without such
mitigation measures or conditions being required (where such approval creates the requirement
for preparationofafull environmental impact report and the adoption ofa statement of
overrding considerations , City orCIC shall prepare such documentation atno cost and expense
to Developer and in an expeditious manner); and (d) neither City nor CIC shall designate the
32.
reverted portion of the Property for any land uses which are incompatible with the Project on the
portions of the Property which Developer owns or has the right to own.
ARTICLE 10
MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE
10.1 Mortgagee 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
this 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 inure
to the benefit of any person or entity, including any deed of trust beneficiar or mortgagee
Mortgagee ) who acquires title to the Property, or any portion thereof, by foreclosure , trustee
sale , deed in lieu of foreclosure , or otherwise; provided , however , prior to the issuance of a
Certificate of Completion " under the DDA with respect to such portion of the Property, the
Mortgagee must be a permitted mortgagee under the DDA.
10.Mortgagee Not Obligated . Notwithstanding the provisions of
Section 10.1 above , no Mortgagee shall have any obligation or duty under this Development
Agreement to perform Developer s obligations or other affrmative covenants of Developer
hereunder; provided , however, that a Mortgagee shall not be entitled to devote the Property to
any uses or to constrct any improvements thereon other than those uses or improvements
provided for or authorized by this Development Agreement .orby the Project Approvals
(including the Subsequent Approvals) and Applicable Rules.
10.Notice of Default to Mortgagee; Right of Mortgagee to Cure . IfCity
receives a notice from a Mortgagee requesting a copy of any Notice of Default given to
Developer hereunder and specifying the address for service thereof, then City shall deliver to
such Mortgagee, concurrently with service thereon to Developer , any notice given to Developer
with respect to..any claim by City that Developer has committed a default, and if City makes a
determination of noncompliance hereunder , City shall likewise serve notice of such
noncompliance on such Mortgagee concurrently with service thereof on Developer. Each
Mortgagee shall have the right (but not the obligation) durng the same period available to
Developer to cure or remedy, ofto commence to cure or remedy, the Event of Default claimed or
the areas of noncompliance set forth in City s notice.
10.4 No Supersedure . Nothing in this Aricle 10 shall he deemed to supersede
or release a Mortgagee or modify a Mortgagee ' s obligations under any subdivision improvement
agreement.or other obligation incurred with respect to the Project outside this Devel()pment
Agreement , nor shall any provision of this Aricle 1 o constitute an obligation of City to such
Mortgagee , except as to the notice requirements of Section 10.
10.Technical Amendments to this Article 10.City agrees to reasonably
consider and approve technical amendments to the provisions of this Aricle. 1 0 which are
required by lenders for the acquisition and construction of the improvements on the Property or
33.
any refinancing thereof and to otherwise cooperate in good faith to facilitate Developer
negotiations with lenders.
ARTICLE
MISCELLANEOUS PROVISIONS
11.1 Limitation on Liabilty . Notwithstanding anything to the contrary
contained in this Development Agreement , in no event shall: (a) any parner , offcer, director
member, shareholder, employee or agent of Developer or any general partner of Developer or its
general parners be personally liable for any breach of this Development Agreement by
Developer, or for any amount which may become due to City under the terms .ofthis
Development Agreement; or (b) any member, offcer , agent or employee of City be personally
liable for any breach of this Development Agreement by City or for any amount which may
become due to Developer under the terms of this Development Agreement.
1l.2 Force Majeure . The Term of this Development Agreement and the time
within which Developer shall be required to perform any act under this Development Agreement
shall be extended by a period of time equal to the number of days during which performance of
such act is delayed unavoidably and beyond the reasonablecontrolofthe Pary seeking the delay
by strikes , lock-outs , Acts of God , inclement weather, failure or inability to secure materials or
labor by reason of priority orsimilarregulations or order of any governental or regulatory
body, changes in local , state or federal laws or regulations , enemy action , civil disturbances , fire
unavoidable casualties , or any other cause beyond the reasonable control of Developer which
substantially interferes with canyingout the development of the Project. Such extension(s) of
time shall not constitute an Event of Default and shall occur aUhe request of any Party.
addition , the Term of this Development Agreement and any subdivision map or any of the other
Project Approvals shall not include any period of time during which (i) a development
moratorium including, but not limited to , a water or sewer moratorium , is in .effect; (ii) the
actions of public agencies that regulate land use , development or the provision of services to the
Property prevent , prohibit or delay either the construction , funding or development of the Project
or the conveyance of the Property to Developer in accordance with the DDA; (iii) the CIC fails
to fund Demolition or the Backbone Infrastructurein accordance with the DDA , or to perform its
obligations pursuant to the terms of the DDA orthe Cityandlorthe CIC fails to perform their
obligations under the Joint Implementation Agreement; or (iv) there is any mediation , arbitration
litigation or other administrativeorjudicialproceeding pending involving the Vested Elements
, .
or Project Approvals (including the Subsequent Approvals). The Term ofthe Proj ect Approvals
(including the Development Agreement) shall therefore be extended by the length of any
development moratorium or similar action; the amount oftimeany actions of public agencies
prevent , prohibit or delay the construction , funding or developmentofthe Project or the
conveyance of the Property to Developer in accordance with the DDA;theamount oftimeany
failure by CIC to perform its obligations under theDDA or failure by the City andlorthe CIC to
perform their obligations under the Joint Implementation Agreement prevents , prohibits or
delays the construction , funding or development of the Project or the conveyance of the Property
to the Developer in accordance with the DDA; or the amount of time to finally resolve any
mediation , arbitration , liigation or other administrative or judicial proceeding involving the
Vested Elements , or Project Approvals (including the Subsequent Approvals). Furthermore , in
the event the issuance of a building permit for any part of the Project is delayed as a result of
34.
Developer s or City s or CIC's inability to obtain any other required permit or approval , then the
Term of this Development Agreement shall be extended by the period of any such delay.
11.Notices. Demands and Communications Between the Parties . Formal
written notices , demands , correspondence and communications between City and Developer
shall be suffciently given if delivered personally (including delivery by private courier),
dispatched by certified mail , postage prepaid and return receipt requested , or delivered by
nationally recognized overnight courier service , or by electronic facsimile transmission followed
by delivery of a "hard" copy to the offces of City and Developer indicated below. Such written
notices , demands , correspondence and communications may be sent in the same manner to such
persons and addresses as either Party may from time-to-time designate in writing at least fifteen
(IS) days prior to the name and/or address change and as provided in this Section 11.3.
City:City of Alameda
2263 Santa Clara Avenue
Alameda , CA 94S0
Attn: City Manager
with copies to:City of Alameda
2263 Santa Clara Avenue
Alameda , CA 94501
Attn: City Attorney
City of Alameda
2263 Santa Clara Avenue
Alameda , CA 94S01
Attn: Planing Director
City of Alameda
2263 Santa Clara Avenue
Alameda , CA 94501
Attn: Proj ect. Administration
Developer:Catellus Development Corporation
201. Mission Street
San Francisco, CA. 94105
Attn:.. General Counsel
. with copies to:Catellus Residential Group
4000 Westerly Place
Newport Beach CA 92660
Attn: Timothy Unger, Executive Vice-President
Catellus Commercial Group
201 Mission Street
San Francisco , CA 94105
Attn: Don Little
35.
Brobeck , Phleger & Harrson LLP
One Market , Spear Street Tower
San Francisco , CA 94105
Attn: Susan R.Diamond , Esq.
If Developer is any entity other than Master Developer , a copy of all notices to Developer shall
also be delivered to Master Developer at the following address:
Catellus Development Corporation
201 Mission Street
San Francisco , CA 94105
Attn: General Counsel
Notices personally delivered shall be deemed to have been received upon
delivery. Notices delivered by certified mail , as provided above , shall be deemed to have been
given and received on the first to occur of (i) actual receipt by any ofthe addresses designated
above as the Party to whom notices are to be sent , or (ii) within five (5) days after a certified
letter containing such notice , properly addressed , with postage prepaid , is deposited in the United
States mail. Notices delivered by overnight courier service as provided above shall be deemed to
have been received twenty-four (24) hours after the date of deposit. Notices delivered by
electronic facsimile transmission shall be deemed received upon receipt of sender of electronic
confirmation of delivery, provided that a "hard" copy is delivered as provided above.
11.4 No Joint Venture or Partnership . Nothing contained in this
Development Agreement or in any document executed in connection with this Development
Agreement shall be construed as making City and Developer joint venturers or partners.
11.5 Severabilty . If any terms or provision( s) of this Development Agreement
or the application of any term( s) or provision( s) of this Development Agreement to a particular
situation , is (are) held by a court of competent jurisdiction to be invalid , void or unenforceable
the remainder of this Development Agreementor the application of this Development Agreement
to other situations , shall remain in full force and. effect unless amended or modified by mutual
consent of the Parties; provided that , if the invalidation , voiding or enforceability would deprive
either City or Developer of material benefits derived from this Development Agreement , or make
performance under this Development Agreement unreasonably difficult , then City and Developer
shall meet and confer and shall make good faith efforts to amend or modify this Development
Agreement in a maner thatismutuallyacceptable to City and Developer. Notwithstanding the
foregoing, if any material provision of this Development Agreement , or the application of such
provision to a paricular situation , is held to he invalid , void or unenforceable , Developer (in its
sole and absolute discretion) may terminate this Development Agreement by providing written
notice of such termination to City.
11.Section Headings . Aricle and Section headings in this Development
Agreement are for convenience only and are not intended to be used in interpreting or construing
the terms , covenants or conditions of this Development Agreement.
36.
11. 7 Construction of Agreement.This Development Agreement has been
reviewed and revised by legal counsel for both Developer and City, and no presumption or rule
that ambiguities shall be construed against the drafting Party shall apply to the interpretation or
enforcement of this Development Agreement.
11.8 Entire Agreement.This Development Agreement is executed in
duplicate originals , each of which is deemed to be an original. This Development
Agreement consists of pages including the Recitals , and exhibits and
U appendices , attached hereto and incorporated by reference herein , which , together
with the Project Approvals , constitute the entire understanding and agreement of the Parties and
supercedes all negotiations or previous agreements between the Paries with respect to all or any
part of the subject matter hereof. The exhibits and appendices are as follows:
37.
Exhibit A Legal Description of the Property
Exhibit B Map of the Property
Exhibit C Form of Release
Exhibit D Public Benefits
Exhibit E Joint Implementation Agreement
Exhibit F Impact Fees
Exhibit G Mitigation Monitoring and Reporting Program
Appendix I Definitions
11.9 Estoppel Certifcates . Either Pary may, at any time during the Term of
this Development Agreement , and from time to time , deliver written notice to the other Party
requesting such Party to certify in writing that , to the knowledge ofthe certifying Pary, (a) this
Development Agreement is in full force and effect and a binding obligation of the Paries
(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 Pary is not in default in the
performance of its obligations under this Development Agreement , or if in default , to describe
therein the nature and amount of any such defaults. The Pary receiving a request hereunder
shall execute and return such certificate or give a written, detailed response explaining why it
will not do so within twenty (20) days following the receipt thereof. The failure of either Party
to provide the requested certificate within such twenty (20) day period shall constitute a
confirmation that no default exists. Either the City Manager or the Planning Director shall have
the right to execute any certificate requested by Developer hereunder. City acknowledges that a
certificate hereunder may be relied upon by transferees and Mortgagees.
11.10 Execution and Recordation . Pursuant to California Governent Code
Section 65868., within ten (10) days after the Effective Date, the City Manager shall execute
this Development Agreement on behalf of City and the City Clerk shall record this Development
Agreement with the Alameda County Recorder. Thereafter, if this Development Agreement is
terminated , modified or amended pursuant to Aricle 1 , Aricle 5 , Aricle 6 , Aricle 7 or Section
9.4 of this Development Agreement , the City Clerk shall record notice of such action with the
Alameda County Recorder.
11.11 No Waiver . No delay or omission by either Par in exercising any right
or power accruing upon non-compliance or failure to perform by the other Party under any of the
provisions of this Development Agreement shall impair any such right or power or be construed
to be a waiver thereof. A waiver by either Party of any of the covenants or conditions to be
performed by the other Party shall be in writing and signed by a duly authorized representative of
the Par against whom enforcement of a waiver is sought , and any such waiver shall not be
construed as a waiver of any succeeding breach or non-performance ofthe same or other
covenants and conditions hereof.
38.
11.12 Time Is of the Essence . Time is of the essence for each provision of this
Development Agreement for which time is an element.
11.13 Applicable Law . This Development Agreement shall be construed and
enforced in accordance with the laws of the State of California.
11.14 Attorneys ' Fees . Should any legal action be brought by either Party
because of a breach ofthis Development Agreement or to enforce any provision of this
Development Agreement , the prevailing party shall be entitled to reasonable attorney s fees and
such other costs as may be found by the court or arbitrator.
11.15 Third Party Beneficiaries . Except as otherwise provided herein , City
and Developer hereby renounce the existence of any third party beneficiary to this Development
Agreement and agree that nothing contained herein shall be construed as giving any other person
or entity third party beneficiary status. Notwithstanding the above , City and Developer agree
that Developer is a third party beneficiary of the Joint Implementation Agreement.
11.16 Constructive Notice and Acceptance . Every person who now or
hereafter owns or acquires any right , title or interest in or to any portion of the Property is and
shall be conclusively deemed to have consented and agreed to every provision contained herein
whether or not any reference to this Development Agreement is contained in the instrument by
which such person acquired an interest in the Property.
11.17 Counterparts . This Development Agreement may be executed by each
part on a separate signature page , and when the executed signature pages are combined , shall
constitute one single instrument.
11.18 Authority . The persons signing below represent and warrant that they
have the authority to bind their respective Party and that all necessar board of directors
' ,
shareholders , partners ' , city councils , redevelopment agencies ' or other approvals have been
obtained.
39.
IN WITNESS WHEREOF , City and Developer have executed this Development
Agreement as of the date first set forth above.
Developer
CATELLUS DEVELOPMENT
CORPORATION, a Delaware corporation
By:
Name:
Its:
By:
Name:
Its:
City"
CITY OF ALAMEDA, a California
corporation
By:
Name:
Its:
ATTESTATION:
By:
APPROVED AS TO FORM:
, City Clerk
By:, City Attorney
40.
STATE OF CALIFORNIA
COUNTY OF
) ss.On
, -
' before me
Notary Public , personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in his/her authorized capacity and that by his/her signature on the instrument the person , or
the entity upon behalf of which the person acted , executed the instrument.
WITNESS my hand and offcial seal.
Signature
(SEAL)
COUNTY OF
) ss.
STATE OF CALIFORNA
On ' before me
Notar Public , personally appeared personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrment and acknowledged to me that he/she executed the
same in his/her authorized capacity and that by his/her signature on the instrument the person, or
the entity upon behalf of which the person acted , executed the instrent.
WITNSS my hand and offcial seal.
Signature
(SEAL)
41.
STATE OF CALIFORNIA
COUNTY OF
) ss.On
, -
' before me
Notary Public , personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he/she executed the
same in hislher authorized capacity and that by his/her signature on the instrument the person , or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and offcial seal.
Signature
(SEAL J
42.
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
REAL PROPERTY lying in the County of Alameda, described as follows:
EXHIBIT B
MAP OF THE PROPERTY
EXHIBIT C
FORM OF RELEASE
RECORDING REQUESTED AND WHEN
RECORDED MAIL TO:
FOR RECORDER'S USE ONLY
City Clerk
City of Alameda
2263 Santa Clara Avenue
Alameda , CA 94501
Recorded for the Benefit of
The City of Alameda
Pursuant to Governent
Code Section 6103
RELEASE
This Release is entered into by and among Catellus Development Corpor tion, a
Delaware corporation ("Developer ), the City of Alameda , a municipal corporation organized
under the laws of the State of California (the "City ), and the Community Improvement
Commission of the City of Alameda, a public body, corporate and politic (the "CIC"), to the
following facts:
A. Developer and the City entered into a Development Agreement dated as of
(the "DA"), recorded as in the Official Records of the Alameda
County Recorder , relating to certain real property as described more paricularly therein (the
Propert"
B. Developer and the CIC entered into a Disposition and Development Agreement datedas of (the "DDA"), recorded as in the Official Records of the
Alameda County Recorder, for the disposition by the CIC and acquisition by Developer ofthe
Propert;
C. Under the terms of the DAand the DDA , upon the occurrence of certain events , the
paries agreed to release certain portions of the Propert from the effect of the DA and the DDA;
NOW THEREFORE, for good and valuable consideration, the paries agree as follows:1. Pursuant to Section of the DA and Section of the DDA, Developer
the City and the CIC agree to release the portion ofthe Propert described in Exhibit A, attached
hereto , from the effect ofthe DA and the DDA.2. Except as modified by this Release , the DA and the DDA shall continue in
full force and effect.
IN WITNESS WHEREOF , the undersigned have executed this Release as of the date first
above written.
Dated:DEVELOPER"
CATELLUS DEVELOPMENT
CORPORATION , a Delaware corporation
By:
Name:
Title:
By:
Name:
Title:
Dated:CIC"
Secretary
COMMUNTY IMPROVEMENT
COMMISSION OF THE CITY OF
ALAMEDA, a public body, corporate and
politic
ATTESTATION:
By:
By:
APPROVED AS TO FORM:Executive Director
By:By:
General Counsel Secretary
Dated:CITY"
ATTESTATION:CITY OF ALAMEDA, a California municipal
corporation
By:
City Clerk By:
Name:
Title:
APPROVED AS TO FORM:By:
Name:
Title:
By:
EXHIBIT D
PUBLIC BENEFITS
The Public Benefits of the Project are as follows:
Eliminating blighting influences and correcting environmental deficiencies in the Project
area , including, but not limited to , abandoned buildings , incompatible land uses
depreciated or stagnant property values , and inadequate or deteriorated public
improvements , facilities , and utilities.
Replanning, redesigning, and developing undeveloped and underdeveloped areas that are
improperly utilized to achieve a balanced mix of land uses and create a vibrant new
neighborhood in City.
Expanding and improving the community s supply of housing through the installation of
needed site improvements and the construction of up to 500 market-rate units , with
inclusionar housing, consistent with the existing density and character of City and with
existing City policies and standards.
Providing diversity in housing opportunities through compliance with Community
Improvement Commission inclusionary housing policy.
Strengthening the economic base of the Project area and the community by adding
approximately 1.3 millon gross square feet of business park and supporting retail space.
Achieving job creation and economic development.
Actively seeking and promoting business and light industries that provide significant
sustainable employment , including a mix of light industres emphasizing opportnities
for technology research and development (R&D) and technology transfer.
Facilitating the emergence of commercial-industrial sectors , including those expected to
emerge or expand due to their proximity to the new business park site, through
improvement of transportation access to commercial and industral areas , improvement of
safety within the Project area, and the installation of needed site improvements to
stimulate new commercial and industral expansion , employment, and economic growth.
Maximizing tax increment and developing other fuding mechanisms in order to pay for
the public investment in infrastructure required for economic development in the Project
area.
Emphasizing employment and a mix of economic development opportunities that
complement economic development strategies in other pars of City and promoting a
jobs-housing balance to the extent practicable.
Seamlessly integrating the Project site into City by: emphasizing Mixed Use
development; ensuring land use compatibility within and surrounding the Project site;
creating the same "small town " character on the Project site which is highly valued by the
existing community; achieving the same human-scale , tree-lined character of
neighborhood walkable streets found throughout the existing City; reflecting the grid
street pattern that is characteristic of the existing City; minimizing through-traffic on
minor residential streets.
Reducing the impact of the automobile and energy consumption by: (1) facilitating
public transit opportunities to and within the Project area to the extent feasible; and (2)
providing a system of bikeways , parks , and pedestrian paths to facilitate access to parks
recreational areas and the waterfront from all parts of western Alameda.
Protecting and improving the waterfront by enhancing views of water and public access
to the waterfront in all development and creatively encouraging the usage of the
waterfront.
Providing adequate vehicular access to and within the Project site without significant
adverse effects on access to existing areas of City.
Providing a school site to further educational opportunities in the former NAS Alameda
and FISC site and coordinating educational plans and development with existing
educational organizations including the College of Alameda and the Alameda Unified
School District.
Providing parks within the Project site to service the needs of the residents of this
primarly residential district.
Promoting energy effciency in facility development , utilizing recycled materials to the
extent feasible , and applying low water demand techniques in all new development
including all landscape development.
EXHIBIT E
JOINT IMPLEMENTATION AGREEMENT
EXHIBIT F
IMPACT FEES
The following Impact Fees shall apply to the Project as provided in Section 3.3 of the
Development Agreement:
TSM Pro ram:$ 0.19 per square foot of offce or research and development space as
provided in Condition of the Master Plan Resolution.
Public : As provided in Condition of the Master Plan Resolution.
School Fee : The Sterling Act School Impact Fee: (a) Residential: $1.93 per square foot;
(b) Office/R&D: $ 0.31 per square foot.
Affordable Housin Fees : (a) Residential: $6000.00 per residential unit (DDA
section 7.2); (b) Retail: $l.50 per square foot; (c) Office/Research and Development:
$3.00 per square foot.
Construction Improvement Tax : One percent (1 %) of construction cost of all uses.
DwellinE Unit Tax : $ 1092.00 per residential unit.
Sewer Connection Fee : $ 670.00 per structure for Residential or Office/R&D.
Police and Fire : (a) Residential: $ 0.155 per square foot; (b) Offce/R&D: .15 per
square foot.
Commencing on January 1st of the year after the Effective Date of the Development
Agreement , if the City of Alameda Master Fee resolution ("Master Fee Resolution ) has
been revised since the Effective Date , then the above fees (excepting the School Fee
Public Ar Fee , the Residential Affordable Housing Fee and the Construction
Improvement Tax) will increase by the lesser of the percentage increase reflected in the
Bay Area Consumer Price Index for the period between the Effective Date and that
January 1st or the increase for such fees provided in the most recently adopted Master
Fee Resolution , if applicable. Each January 1st thereafter , ifthe Master Fee Resolution
was revised during the prior year , then the above fees (excepting the School Fee , the
Residential Affordable Housing Fee , Public Ar Fee and the Construction Improvement
Tax) wil increase by the lesser of the percentage increase reflected in the Bay Area
Consumer Price Index for that year or the increase provided in the Master Fee Resolution
for such fees adopted during the prior year. If the Master Fee Resolution is adopted or
amended less frequently than annually, then the above fees (excepting the School Fee , the
Residential Affordable Housing Fee , the Public Ar Fee and the Construction
Improvement Tax) will only increase on the January 1st of the years immediately after
the Master Fee Resolution was revised and by an amount equal to the lesser of the
increase provided in the Master Fee Resolution for such fees or the cumulative
percentage increase in the Bay Area Consumer Price Index since the last increase in the
above fees (except the School Fee , the Residential Affordable Housing Fee , the Public
Ar Fee and the Construction Improvement Tax).
The Sterling Act School Impact Fee will not increase by the Bay Area Consumer Price
Index , and instead will increase by the amount provided for in said Act or subsequently
by the State Legislature. The Residential Affordable Housing Fees will escalate by the
Engineering News Record rate as provided in Section 7.2 of the DDA.
EXHIBIT G
MITIGATION MONITORING AND REPORTING PROGRA
APPENDIX I
DEFINITIONS
Acquisition and Funding Agreement Section 1.5.
Administrative Amendment Section 6.4.
Agreement Page 1
Agreement Date Page 1
APIP Section 1.S.
Applicable General Plan Section 3.
Applicable Rules Section 3.
Applicable Zoning Ordinance Section 3.
AR - Recital C
AUSD Recital C
Backbone Infrastrcture Recital D
Building Regulations Section 3.
BWI Section l.S.3
BWI Amendments Section 1.S.
CEQA Recital H
CIC Recital C
City Section 1.
City Council Recital K
City Development Agreement Regulations Recital B
College Section 4.
DDA Recital C
Demolition Recital D
Developer Section 1.
Development Agreement Page 1
Development Agreement Legislation Recital A
Development Agreement Regulations Recital B
Disposition Map Section 1.S.
East Housing Recital C
Effective Date Section 1.
EIR Recital H
Enacting Ordinance Recital K
Event of Default Section 7.
Federal Law Section 3.4.
FISC Recital C
Future Rules Section 3.4.2
General Plan Recital G
General Plan Amendments Section 1.
Governent to Governent Map Section 1.5.
Housing Agreement Section 1.2.
Impact Fees Section 3.
Joint Implementation Agreement Section 1.S.
Master Developer Section l.
Master Plan Section 1.5.
MMRP Section 4.
Mortgage Section 10.
Mortgagee Section 10.
Multi-Family Housing Section 1.2.
Multi-Family Housing Site Section 1.2.
NAS Alameda Recital C
Navy Recital C
Notice of Default Section 5.
Paries Page 1
Party Page 1
Planning Board Recital K
Planning Director Section S.
Port Recital C
Port Agreement Section 1.
Port Property Section 1.
Processing Fees Section 3.
Project Recital D
Project Administration Office Section 3.
Project Approvals Section 1.5
Propert Recital C
Public Benefits Section 2.
Public Works Director Section 6.4.
Residential Publidy-Maintained Streets .- Section 4.2
School Agreement Section 1.
School Site Section 1.1.
State Law Section 3.4.3
Subsequent Approvals Section 1.5.
Tentative Map Section 1.5.
Term Section 1.3.
Tubes Section 3.
UP Right of Way Recital C
Vested Elements Section 3.
Zoning Amendments Section 1.
*****
, the undersigned, hereby certify that the foregoing Ordinance was duly and regularly adopted
and passed by the Council ofthe City of Alameda in special meeting assembled on the 6th day of
June , 2000 , by the following vote to wit:
AYES:Councilmembers Daysog, DeWitt , Johnson and Kerr - 4.
NOES:None.
ABSENT:Mayor Appezzato - l.
ABSTENTIONS:None.
IN WITNESS , WHEREOF , I have hereunto set my hand and affxed the official seal of said City
this 7th day of June , 2000.
Di e Felsch , City Clei'k
City of Alameda