Title
Adoption of Resolution Finding that the Harbor Bay Entities [Harbor Bay Village Four Associates (HBV4), Harbor Bay Village Five Associates (HBV5), and Harbor Bay Isle Associates (HBIA)] Have Demonstrated Good Faith Compliance with the Terms and Conditions of Development Agreement, DA-89-1. [This Compliance Review is not a project under California Environmental Quality Act.] (Planning, Building & Transportation 481005)
Body
To: Honorable Mayor and Members of the City Council
From: David L. Rudat, Interim City Manager
EXECUTIVE SUMMARY
On April 4, 1989, the City of Alameda (City) entered into a 30-year Development Agreement, DA-89-1, with Harbor Bay Village Four Associates (HBV4), Harbor Bay Village Five Associates (HBV5), and Harbor Bay Isle Associates (HBIA), hereinafter referred to as the “Harbor Bay Entities.” Each year for the past 29 years, the City’s Planning Board has reviewed an Annual Report confirming that the Harbor Bay Entities have complied with the obligations under the Development Agreement. On February 11, 2019, the Planning Board reviewed the 30th and final Annual Report for the Development Agreement, which will expire on April 4, 2019. The Planning Board found that the Harbor Bay Entities have demonstrated good faith compliance with the terms and conditions of the Development Agreement, through April 4, 2019, based on the findings contained in the Resolution.
Staff is recommending that the City Council approve the Resolution declaring that the Harbor Bay Entities have demonstrated good faith compliance with the terms and conditions of Development Agreement, through April 4, 2019.
BACKGROUND
The 1989 Development Agreement was intended, in part, to clarify and implement the requirements and satisfy the conditions of the Settlement Agreement between the City and HBIA, dated December 5, 1977, and the Settlement Agreement between the City and HBIA, HBV4 and HBV5, dated November 3, 1988.
The Development Agreement was entered into by the Harbor Bay Entities and the City in an effort to resolve issues relating to the responsibility for provision of public facilities by the applicants, including a fire station and interior public school site; the completion, improvement, and maintenance of public open space for the Harbor Bay project; and to provide a funding source for a portion of the costs of certain infrastructure, including major arterial roads for the Harbor Bay project. The document also confirms certain standards for the development of Residential Village 5 and the Harbor Bay Business Park.
Each year for the past 29 years, the City’s Planning Board has reviewed an Annual Report confirming that the Harbor Bay Entities have been fulfilling their obligations under the Development Agreement.
This report represents the 30th and final Annual Report for the Development Agreement, which will expire on April 4, 2019.
DISCUSSION
In order to demonstrate good faith compliance, the applicant’s representative, Daniel F. Reidy, attorney for the Harbor Bay Entities submitted a document entitled “Final Annual Report on Performance of Obligations under Harbor Bay Development Agreement DA-89-1” (Exhibit 1).
Staff has reviewed the Development Agreement (Exhibit 2) provisions and finds that both parties have demonstrated a good faith effort to comply with the terms and conditions of the Development Agreement during the review period. The following review addresses both the most recent year as well as the prior 29 years and serves as a “close out” review for the Development Agreement.
Section 1: Recitals. This section establishes the authorization, purpose, intent, and prior approvals that support the Development Agreement. Over the 30 year term, the Harbor Bay Entities and the City have complied with the intent and purpose of these recitals.
Section 2: Public Improvements. This section establishes the major public improvements and facilities that were to be provided through the agreement:
• Shoreline Park and Parcel 4. Both parties have met their obligations under the agreement for the creation of a publicly-owned Shoreline Park. During this final year of the agreement, the parties have been working to transfer the final privately owned parcel (Parcel 4) from HBIA to the City. On February 11, 2019, the Planning Board found that acquisition of the property was consistent with the General Plan. On February 13, 2019, the City took ownership of Parcel 4. The property is already zoned open space and already includes a public access easement and temporary Bay Trail improvement on the uplands portion of the small parcel. The majority of the parcel is below the high tide line.
• Interior Park. The four (4) acres of Interior Park lands in Village IV required under the agreement resulted in the construction of Tillman Park on Auginbaugh Way.
• Schools. The obligation to provide lands for schools was fulfilled, which resulted in the construction of Bay Farm Island elementary school.
• Lagoons: The Harbor Bay Lagoon system was developed as envisioned in the agreement.
• Fire Station: The Harbor Bay fire station was constructed and began operation 25 years ago.
• HB Maritime Docking Facility: The ferry terminal at Harbor Bay was constructed and began continuous operation in 1992.
• Recreational Vehicle (RV) and Mini Storage Area: The RV Storage and mini storage have been in operation for over 20 years.
• Catalina cul-de-sac: The existing hammer head at the end of Catalina was approved by the City’s Public Works department.
Section 3: Financial of Public Improvements describes the financing mechanisms that will be set up to implement the improvements. Both parties met their obligations to establish the Mello-Roos District and the Traffic Improvement Fund.
Section 4: Development of the Properties establishes the rules that will be followed by the parties for the development of the properties during the 30-year term. Both parties complied with the obligations of this section over the 30-year term.
Section 5: Development Program describes a performance schedule for development and contingencies for outside agencies or moratoria, delays, or suspensions. Both parties complied with the obligations of this section.
Section 6: Annual Review requires annual reviews. Both parties have complied with the obligations of this section over the 30-year term.
Section 7: Applicable Law describes the legal framework that governs implementation of the Agreement. Both parties complied with the obligations of this section over the 30-year term.
Section 8: Enforced Delay, Default, and Remedies describes the processes that will be following in the event of default or breach of the terms of the Development Agreement. Both parties have complied with the obligations of this section over the 30-year term.
Section 9: Encumbrances and Releases of Real Property establishes the rights preserved for property owners to encumber property with mortgages, deeds of trust, and financing security devises. Both parties complied with the obligations of this section over the 30-year term.
Section 10: Miscellaneous Provisions establishes the 30-year term, assignment and delegation rights, transfer rights, amendment procedures, enforcement procedures, noticing requirements and other miscellaneous procedures. Both parties complied with the obligations of this section over the 30-year term.
Staff has reviewed the applicant’s Annual Report and finds that the applicant has demonstrated a good faith effort to comply with the terms and conditions of DA-89-1 during the review period.
FINANCIAL IMPACT
Adoption of the resolution would have no impact on the General Fund. All existing assessment districts that have been put in place to fund public facilities and services will remain in effect.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
An Annual Report is required by Alameda Municipal Code section 30-95.1 Periodic Review, which requires an annual review of each development agreement entered into by the City.
ENVIRONMENTAL REVIEW
This compliance review is not a project under the California Environmental Quality Act. No further environmental review is required.
RECOMMENDATION
Adopt a resolution declaring that the Harbor Bay Entities have demonstrated good faith compliance with the terms and conditions of Development Agreement, DA-89-1.
Respectfully submitted,
Andrew Thomas, Acting Planning, Building, and Transportation Director
Financial Impact section reviewed,
Elena Adair, Finance Director
Exhibits:
1. Final Annual Report
2. 1989 Agreement