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2008-03-05 Joint CC ARRA CIC Packet~~~~~ /~~ P !~ ~` 7 -}~~~~.~~ ~~ CITY ~F ALAI~IEI~A • ~ALIF~RNIA ~ ~ Y='1 ~~~ ~kir~s•rMaK~tiv ~~ SPECIAL JOINT MEETING OF THE CITY COUNCIL, ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY ~ARRA}, AND COMMUNITY IMPROVEMENT COMMISSION CIC} WEDNESDAY - - - MARCH 5, 2005 - - - 7:01 P.M. Location: Cit Council Chambers, City Hall, corner of Santa Clara Avenue and Oak Street. Public Participation Anyone wishing to address the Council/Board/Commission on agenda items or business introduced by the Council/Board/Commission may speak for a maximum of 3 minutes per agenda item when the subject is before the Council/Board/Commission. Please file a speaker's slip with the Deputy City Clerk if you wish to speak. 1. ROLL CALL - City Council, ARRA, CIC 2. AGENDA ITEM 2-A. Recommendation to approve the First Amendment to the Alameda Point Exclusive Negotiation Agreement between the City Council, ARRA, CIC and SSC Alameda Paint, LLC to extend the timeline for several mandatary milestones and create a new Developer Consultant Costs account. ~Develapment Services} 3. ADJOURNMENT - City Council, ARRA, CIC Beverly Jo s Ma or Chair, Alam us and Redevelopment Authority and Community Improvement Commission CITY C3F ALAI~FDA Memorandum To. Honorable Chair and Members of the Alameda Reuse and Redevelopment Authority Honorable Chair and Members of the Community Improvement Commission Nonorabie Mayor and Members of the City Council From: Debra Kurita Executive DirectorlCity Manager Date: March 5, 208 Re: Approve First Amendment to Alameda Paint Exclusive Negotiation Agreement Between the Alameda Reuse and Redevelopment Authority, Community Improvement Commission, City of Alameda, and SCG Alameda Point, LLC, Extending the Timeline for Several Mandatory Milestones and Creatin a New Develo er Consultant Casts Account 13ACKCR~UND C7n May 8, ~0~7, the Alameda Reuse and Redevelopment Authority ~ARRA~ selected SunCal Companies as its Master Developer for Alameda Point and established a 60- daydue diligence and Exclusive Negotiation Agreement ~ENA~ negotiation period. The due diligence period was completed, and the ENA between SCC Alameda Point, LLC ~SunCal~, a SunCal entity, and the ARRA, Community Improvement Commission ~CIC~, and City was executed on July ~ ~, 207, Since the ENA approval, SunCal has continued its due diligence and conducted site investigations; held two community meetings; and met with local, regional, State, and Federal stakeholders, including the United States Navy Navy}, The ENA set Earth amulti-year timeline and included a schedule of mandatory performance milestones outlined in Exhibit B-1 of the ENA ~"Schedule of Performance"~. The Schedule of Performance assumed that SunCal would implement the Alameda Point Preliminary Development Concept ~PDC~, which served as the basis far the 20~~ final draft Conveyance Term Sheet with the Navy. During its evaluation of the PDC, SunCal conducted site investigations and technical analyses and determined that the PDC is not financially feasible. SunCal's due diligence indicates that the previous costs to mitigate the site's flood and geotechnical conditions were underestimated, and that revenues from certain portions of the site would not support these increased costs. As a result of these circumstances, SunCal wants to pursue new and distinct development concepts for the site However, SunCal does not believe that it can fully explore alternative development concepts within the Schedule of Performance outlined Agenda ens #~-A ARRAICICICC 3~~-08 . ~...r........r v~~rra~~ vr~~i~ rr~v~~~NV1W \,II \lIV l \SL.1,l1IV41 Lrt I lL'WVV ~~ILA ~~~u~t/~~ V, ~.iwV VV Redevelopment Authority Page 2 of 5 Honorable Chair and Members of the Community Improvement Commission Honorable Mayor and Members of the City Council in the ENA~ As a result, SunCal has requested that the ARRA approve asix-month extension of five Mandatory Milestones in the Schedule of Performance, including the submission of the Development Concept hand its related plans} and the I~ntitlement Application, to September 19, 2008, and November 18, 2008, respectively. SunCal did not request an extension of the ENA's overall 24Wmonth timeline, 0n February 6, 2008, the ARRA considered SunCal's request for a time extension and directed staff to negotiate an amendment to the 1=NA to provide such an extension subject to specific terms and conditions. The recommended First Amendment to the ENA ~"Amendment"~ is attached. In addition to the new information regarding the site conditions at Alameda Point, the housing and credit markets have continued to decline dramatically in recent months. A number of SunCal projects within California are now seriously financially distressed and, since rnid- December, SunGal has significantly scaled back its planning and pre• development activities with regard to the Alameda Point project. SunCal has informed ARRA staff that it has significant outstanding invoices due and owing to its consultants. DISCUSSION In response to SunCal's request for an extension of its project milestone Scheduie, the ARRA Board directed staff to negotiate an BNA amendment that provides SunCal the additional time to replan the project to accommodate the newly discovered site conditions. However the ARRA Board also directed staff to negotiate additional CNA provisions to more fully ensure that sufficient developer investment is made to achieve the deferred milestonesr The following provides an overview of the terms and conditions that were requested by the ARRA and how those issues are addressed in the negotiated CNA Amendment: 1 } Document Delivery, The ARRA requested SunCal to provide copies to ARRA staff of specific, important components of its work so that ARRA staff can gauge the level of effort required by both parties to meet the extended Mandatory Milestones. The "Document Delivery" condition requires that SunCal, within ~5 days of the approved Amendment, provide to ARRA staff copies of the following work conducted to date: i. Ada five Reuse. Historic preservation and adaptive reuse technical analyses; ii, Market Studies, Market reports or studies of (and uses considered for Alameda Point; and iii, Project Pra Forma Most current drafts of Project Pro Formas, All proprietary work will be transmitted directly to ARRA's consultants 1 [V11\l1MwIV ~,/i i1,.l,11 1,,.1.11\rl IYiL/i l iwVl V VI ~I iV' ! ~I~rtI11V~14d [ 1V1r1VV {.111.1 !YI{,dLlVf l V, :L..LILIV Redevelopment Authority Page 3 of 5 honorable Chair and Members of the Community Improvernent Commission Honorable Mayor and Members of the City Council SunCal agreed to those provisions, and they are included in the proposed amendment. 2} ~Vegotlating Cons Account, The existing ENA provides that SunCal must deposit $342,044 each quarter into a Negotiating Cast Account in order to f idly fund ARRA's costs. SunCal made its first two quarterly deposits in July and October of 2047, but has not paid its January 2408 payment, Currently, there is a f and balance of approximately X425,044 in the ARRA's Negotiating Gosts Account, partially because of the slowdown in activity with SunCal, The ARRA suggested that accumulated balances over the $342,040 base amount would be more efficiently dedicated towards SunCal's technical consultant costs. The Amendment allows this balance to be applied in the following manner $342,000 towards SunCal's outstanding January 18, 2048, quarterly deposit to the Negotiating Costs Account; and $83,004 to SunCal to pay a portion of third party costs consulting costs incurred to date Subsequently, SunCal will be obligated to replenish the Negotiating Costs Account to ensure that at the commencement of each new quarter, there is a full $342,000 in the account, as shown in the attached Payment Schedule. SunCal agreed to these provisions, and they are included in the proposed amendment. 3~ Developer Consultant Cons Account. To ensure that there would be a transparent source of funding to pay for the necessary project planning activities, the ARRA required that a new account be created to ensure that SunCal will spend the funds necessary to achieve the extended Mandatory Milestones It is also important to avoid SunCal contractually controlling Alameda Point over the next nine months without making progress on entitling and redeveloping the land. To ensure that work is undertaken, SunCal will deposit additional funds into a new "Developer Consultant Costs Account" and expend a sufficient amount of these funds each month sa that SunCal meets the extended Mandatory Milestones. The ARRA proposed that the Developer Consultant Cost Account be fully funded within ten days of the date of the ENA amendment. SunCal has requested that the Account not be funded until April g, 2048, the date of the next ARRA Negotiating Cast deposit, The following summaries the parameters of the new Developer Consultant Costs Account: i. Quarterl De osit, Beginning in the second quarter of 2008 April ~9, 2008}, SunCal will make quarterly deposits of $350,000 aver the remaining term of the Amended ENA to a new account that will be held in a separate escrow account established, paid for, and used by SunCal for . w. . w. .+r .r..v v ~ .vwx. wa. . ~n .. a v^ ~ ~wr w. v v1 wl I V ! IIL+iI .y~,A {/~ [ iV M V V V~1 ILF IY 1~,~{3 VI 1 V, l..r~~.lU Redevelopment Authority Page 4 of ~ Honorable Chair and Members of the Community improvement Commission Honorable Mayor and Members of the City Council any third-party consultant or legal expenses incurred after the effective date of the Amendment. As described previously, the first quarter 2408 January ~ 9, 2448 -- April 19, 2448 funds will be used by SunCal to pay for third-party work conducted to date. These first quarter funds consist of $83,440 of surplus funds currently in the ARRA's Negotiating Costs Account and $257,004 from SunGal, for a total $350,000 expenditure, ii~ Payment Rate. SunCal gill be obligated to expend at a minimum monthly rate of $~ ~ 7,000, which is the monthly average of the quarterly deposit on third-party consultant expenses over the term of the Amended ENA. Failure to expend the full $350,040 at the end of each quarter is a default pursuant to the ENA. iii. Termination or Default. If SunCal terminates or defaults on the Amended ENA, any remaining funds in the Account would revert to the ARRA. Staff concurs with SunCal's proposal to defer its initial Developer Consultant Costs Account deposit to April 19, 2408. The proposed Amendment contains this approach 4} Monthly Reporting. The ARRA also required that a mechanism for monitoring the monthly progress and expenditures of SunCal be created, as it conducts the work necessary to meet the extended Mandatory Milestones. This will heap ensure that activity is underway on redevelopment of Alameda Point. SunCal will be required to provide a monthly report to the ARRA, which includes the following information: 1 Task Descri Lions. A reasonably detailed narrative of the tasks accomplished and activities undertaken related to predevelopment of Alameda Point. 2. Invoices. Copies of all invoices from third-party consultants for work expended against the Developer Consultant Costs Account. 3. xpen ~ . ,,,,,,,,,,,,,'Lures, Accounting of the monthly and cumulative expenditures of the Developer Consultant Costs Account. SunCal agreed to these provisions, and they are included in the proposed Amendment. BUDGET CONSIDERATION/FINANCIAL IMPACT x .w. .v' .+~er.v r..va. vas .vr .~.v.. xnrv. v v. •a .v a •.va...vv.aNa . .vw..vv +sa.:a.n arawa. v. . v' aaw..v vw Redevelopment Authority Page 5 of 5 Honorable Chair and Members of the Community Improvement Commission Honorable Mayor and Members of the City Council There is no financial impact to the General Fund, CIC, or ARRA budgets. The required deposits, along with a cost recovery provision in the ENA, ensure that the selected developer pays far ARRA staff costs and consultant expenses REC~MMENDATIC~N Approve the First Amendment to the Alameda Point Exclusive Negotiation Agreement with SCC Alameda Point, LLC ~SunCal}, extending the timeline for several Mandatory Milestones and creating a new Developer Consultant Costs Account. Respect ly submitted, ..~.~ ~p~ ~~ ~~ d v, i Leslie A. Little Development Services Director Bye Debbie Potter an ger, Base Reuse ~ immunity Programs Division By: J n if r Ctt R dev Iopment Manager LALIDPIJC: Attachments: 1. First Amendment to Alameda Paint Exclusive Negotiation Agreement 2. Payment Schedule for SunCal's Quarterly Deposits to Negotiating Casts Account and Developer Consultant Costs Account F~R~T AI~~N~~E~T T~3 ALA~E~A ~~3NT ~~CLUS~~E N~GC~TATxON A~REE~ENT Tl~-nS ~l~P.Srr Al~ND11~NT TC ALAM~DA P INT ~f1CLC~S~~~1 N~G~TAT1rt~N ACrI~~E~~NT ~``rirst Amendment"} is made as of ~~ , X045 the "Effeet~~e Date"~, ley and between ALAME~A REC~SE ANA] REDEYEL~pI~IE~T A~T~~R~TY, a point Powers Authority estal~lisl~ed by the City of Alameda and the Camr~unity ~m rovement Comrn~ssion under the Califo~~ia point Exercise o~ Powers Act and a public entity lawfull Y c~•eated and existing under the Mate of California the "ARRA"~, the ~[~l~1VI~~TY ~l~~R~~EI~RI~T ~C~~MSSI~I~ ~F T3E CITY [~~" ALA~EnA, a ublic l~od ca orate ~; ~~ ~ Y ~ and politic ~ CSC }, and the CITY C]F ALAI~E~DA, a municipal carpa~•ation the "City", and together with AP,~A and CiC, "Alameda"} a~~d ~~;~; Aiame~la Point LLB, a Delaware ll~nlted lla~llity comi~any ~"Developer"~, Alameda and Developer are indi~iduall refers-cd to as a y 4i~,a~,~~,,a and collectively ~•eferred to as the "Parties". R~CiTALS 'This l~`irst Amendment is entered upon the basis of the following facts, unde~•standin s g and intentions of the Parties, A. The Parties ente~•ed into that cep-fain Alameda Paint Exclusive l~egotiatian Agreement, dated as of Tiny $, ~~~~ the "(~~r~glo.al Agreement"}, which shall be amended b Y this ~i~•st Amendment, ~. Developer has requested an extension o~ the Mandatory Milestones set fa~•th in Exhibit ~-~ of the Original Agreement pursuant to Section ~.2, of the 4~~ginal Ag~•eement. .. C. The P~trties hey-eto now desire to amend tl~e a~~igi~~al Ag~•eerrlent on the terms and corld~trons hereinafte~• set fartl~, ~, Tl~e C~~•iginal Agz~eement, as arr~e~~ded by this ~i~•st Amendment, shall hereinai'ter collectively be ~-efer~•ed to as the "A~reeme~~t", AC~I~I N~~T N~~, T~~EF~R~E, in consideration of the mutual terms, covenants, conditions and promises set forth he~•ein, tl~e AP.P.A, the CSC, the City and Developer agree as follows; 1. Definitions. All capitalised te~~t~s used he~•ein shall Dave the definitions giWen in the ~z•iginal Agreement, unless otherwise expressly stated herein, ,2, Document Deli, Natwithstar~ding anything to the contrary in Sections 3,8,1. pe~~ta~n~ng to completion and internal review by Developers and consistent with Section 3.8,E of the Agreement, an ar before the date which is fifteen ~5}days from the effective Date of this l~`irst Amendment ~evelape~• shall delive~• to Alameda copies of the following technical and financial information prepared ar commissioned by Uevelaper for the l~raject andfa~• the Pr4'ect J Site: ~a~ all technical feasibility analysis conducted an the historic p~•eservatianlada five reuse p p~•ag~•am far the Project; ~b~ third-paz•ty market ~°epa~~ts or studies of land uses considered at the Project Site completed in connection with secu~•ing financing, including, without limitation, the market study prepared by the Concord Group; and ~c~ the ~~ost current draft P~•o'ect Pro Forma J din pdf fo~•n~~ fo~• high density and law density alternatives. Developer may rovide confidential P or proprieta~~y information directly to Alameda's consultants, 3. Amended Section C, ~ectior~_G of the Ag~•eement is hereby amended as follows; ~~, A~~nended f-~eadi~, The Section ~ heading is he~•eby deleted. and replaced with the fc~llnwing; "Secti~~n ~, Alameda Cast Recover fR,ei~nburscr~nent~ Devela er Can sultant Casts Account." h. Amended Section ~,2, Section G,2 of the AgreemenC is hereby amended to add the follaw~ng; "Alameda shall provide monthly invoices or timesheets, as a ~ aro riates to it p Developer for PrcMDevelopment Costs to be reiznl~u~-sed by .Developer pu~•suant to this ec ti on ~ ." c. Amended Section 6.3. Section G,3 of the Agreement is hereby amended to add. the following; "Alameda shall have the right without Developer's consent to ad'ust line item amounts Shawn in the Annual Budget sa long as ,such adjustments do not exceed the Annual Budget. Byway of example, such adjust~~ents tnay include adding new consultants, ar ad'ustin J g 1'und,5 allocated to staff to consultants a~• vice versa, if Alameda makes such adjustments J Alameda shall provide the adjusted Annual Budget to Developer within thi~-t ~3a} da s of Y y completion of such adjustments." d. Amended Sectia~~ ~,~, I , ~, Section G,3, ~, ~ of the Ag~•eemet~t is he~•eb Y deleted ~n its ent~~•ety and replaced with the fallowing: G,3, ~, Gn the nincticth ~~ath} clay fallowing the Approval bate, Developer shall deposit additional funds into the Negotiating Costs Account equal to twenty~~ive percent ~25~0} of the Anneal Budget ~cach a £`Quarte~ly ~c~asx~"~, Commencing as of April 19, ~Q(~S, Developer shall deposit sufficic~~t funds into the Negotiating Casts Account to have a beginni~~g balance of twentyM five pe~•cent ~2.~~1a} of the Annual Budget (e,g,s if twenty~five percent ~25%} of the Annual Budget equals Three hundred ~'orty~ Two Thousand Two hundred pour Dolla~•s ~$3~2s2Q4} and there is a beginning balance of one ~undi•ed Thousand Dollars ~~~QO,Q(~Q~, Developer shall deposit Two ~undz•ed forty-Two Thousand Two hundred Faur ~$~~~,~~~~}. Developer shall continue this process for each ninety ~9D} day r~egatiating period until this Agreement is terrninatod; provided, however, that in any twelve (~~} month period, Develope~~ shall oat be responsible far ~-ei~~bursement of Pre..Development Costs in excess of the Annual Budget as attached hereto o~~ as revised as provided below, however, such excess casts shall be shown as an accrued deficit in the Negotiating Costs Account I~edge~~, e. Amended SectYan ~,3, ~ ~~, Section C,3,1,~ of the Ag~•eement is hereby deleted in its entirety and replaced with the follawing; G,3. I ,~ ~a} Zf a deficit of greater than ten percent ~ l_Q%~ of the pro~ratod Annual Budget has accrued in the Negotiating Costs Account Ledger for three ~3} succes,5ive quarters, a~• fog- three ~3} ciuarte~•s in any calendar year, Developer and Alameda shall meet clod confe~• in goad faith to assess the sufficiency of the Annual Budget amount, and may upon the written consent of each, adjust the Annual Budget acca~•dingly, Thereafter, Quarte~•]y Deposits shall consist of twenty~f ive pe~~oant ~~~%} of the Annual Budget as revised, plus any deficit accrued in the Negotiating Casts Account (.edger. f, tl~e fQllawing new section G,~.~, fib} The Pax~tics may, upon the written consent of each, adjust the A~~nual Budget, f Alameda determines that an increase in the Annual Budget is necessax•y and Develope~• rues not agree, the~~ Alameda shall have no obligation to perform, a~• ca.use to be performed, any Ft•e~Development work for which such increased amount is necessa~~y, pending resolution of the dispute, New Section G.3.~, Section G of the Ag~•eement is hereby amended to add ~~~,~ Use of Ne atiatin Casts Account Funds Accrued as of the affective Date of the First Amendment. The p'at•tjes acknowledge that as of the effective Date of tho First Arnend~~nent, the Negotiating Casts .Account balance equals Fau~~ hundred Twenty-Five Thousand Thirty-Swan Dollars ~$~Z,07}. Alan~cda shalS apply the balance as (allows: ~a~ Three ~ur~dred Forty Two Thousand Two hundred Faur Dollars x$342, ~~4~ shall be applied as the Quarte~~ly Deposit duo an January I8, 2~D$; and fib} Alarr~eda shall ~•eimburse to Developer the su~•plus funds in the amount of .Eighty-Two Thousand, night ~und~•ed ThirtyMThree Dalla~~s ~~sZ,833}~ 3 g~ New Section G.4, Section ~ of the Agreement is hereb amended to add the following new Section ~,4; y G,4 initial De osit~ Develo e~• Consultant Costs Account Lecher, ~~4, ~ , l Qn ar before Agri 1 ~ ~, 2Q~1~, ~a~ Developer and Alameda shall .jointly establish an esc~•aw account the "~evelo~er Consultant Coss Acco~un~"}with l~i~-st Ame~•ican Title Company at its office located in PIeasanton, California ~"Escrow ~ol~er"~ solely far put•pases of payin consultant and . legal fees and casts of Developer's third-party consultants and ~ttarneys incurred solely from wank on the Pr•o~ect on and afte~• Apr•i 1 ~ ~, ~0~8 kcal lecti vely, "~evelo~er Consultant Cons" r except as pr•ovrdcd ~n Sections C.4,1 and x,4,.5 below, {b~ Developer shall deposit cash in the amount of Th~•ee hundred Lift ThousGrncl Dollars ,'3.~0 0 r y ~$ , oU~ onto tl~e Developer Consult~tnt Costs Account the "~~nltial Developer Consultant ~e~osi~"~, and c D, ~ ~ evelopc~• shall pravrdc 71ist of consultantt~ Developer has engaged, ar intones to engage, to work on the P~~oect the ~EConst~ltar~t Dist"~~ Develope~• shGrll have the ri ht to u date g I andlar rcv~se the Consultant List, h,4• ~ ~~ interest earned an funds in the .Developer Consultant Casts Account shall accrue to that account Devela e;• shall a all escrow fe P p y es related to the Developer Consultant Costs Account, which maybe paid out o#' the funds in that account, 6,4,1.3 All invoices and charges fa~• Develope~• Consultant Costs made ag~rirrst that account ~includin i~~voices g and ch~rrges paid pursuant to Section 6F4,2 below} shall be 1-ecorded an ~r separate ledger the "Developer Consulta~at Costs Acco unt Ledger"}, G.4, ~.4 ~f Developer's actual Developer Consultant Costs far such nrnety ~~o~ gay pex•iad exceed the l;nitial Develo e~• Consultant De osit Dev P p elaper• shat! fund such costs Pram its own so~~r•ces. C~•4, ~edcral Trans ortation A.uthor•it Crant. Alameda 17as abtait~ed a Fecle~•al T~•anspartation Autharit ~"~T~" rant fo~• y ~g t~•anspartation feasibility analyses, .Matching funds i~~ the amount of Sixty Thousand Dollars ~$6a,0~~} a~•e required far the release of the ~A gr~rnt funds, immediately upon deposit of the l<nitial Developer Consultant Deposit into the Develo er Consultant Casts P 4 Account, Developer shall instruct escrow folder to pay to Alameda Sixty Thousand Dollars ~$b4,oo0} of the initial Devel~ope~•Consultant Deposits which Alameda shall apply as the matching funds for the ~'A grant, b.4.2 Nlechanisrn for Fundin Qn o~n Develo er Consultant Costs. Dn July I9, 2~~U8 and each ninetieth (9ath}day thereafter, Developer shall deposit additional funds into the Developer Consultant Casts Account eyual to Three ~und~•ed fifty Thousand Dollars ~$~SO,QpQ} beach a "Developer Co~sulta~t Cost Quartcr~y Dep~slt"}. Developer shall continue this process far each ninety X90}day negotiating period until this Agreement is terminated. Any extension of this Agreement as provided herein shall extend the p~•ocedu~•cs set forth in this Section b.4~2. Section b,4,3 Month, !,~„l~a artin~, Comrr~er~cing on April I9, 2008 G~nd eve~•y thirty ~3~1} days thereafter, Developer shah p~~ovide a report the "ll~onthly Report"} to Alameda, The first Monthly ~epor•t sL~all waver the pe~•iod commencing an the ~ffcctivc Date of the ~'i~•st Amendment through Ap~•il 19, 2~DS and shall include payments made pu~•suant to Section G,5,2 below as part of the documentation required pu~~suant to this Section b,4,3, The Monthly Repo~•t shall, at a minirn~~m, include; ~a} a narrative of the tasks accomplished and activities undertaken by Developer's canstrltants anti atta~•neys on the ~~yo~ect; ~b}updates andlar ~•evisions to tl~e Co~~sultant ~.ist, if applicable; ~c} copies al" all invoices far Developer Consultant Costs paid pul•suant to Section b,5,2 below solely as pa~•t of the first Monthly Report}; ~d}copies of ail invoices for Develope~• Consultant Costs billed to the Develape~• Cc~r~sultant Cost Account; and fie} a tally of monthly and cumulative expenditures paid pu~~suant to Section G,5,~ below and from the Consultant Cast Account, ~~` Alameda disputes any invoice o~• charge to the Develape~• Consultant Costs Account, Afarneda shall notify Developer, and if the pa~•ties so agree that a~~ invoice or chax•ge has bee~~ inappr.opriatelyeharged against tl~e Developc~~ Consultant Costs Account, Developer shall promptly replenxsl~ tl~e Developer Consultant Costs Account in the amount of the inappropriate invoices} or cha~•ge~s}, Section b,4,4 P~en~~, Developer shall pay Develope~• Consultant Casts f~~om the Develope~• Co~nsultar~t Casts Account at a rate of Cane hundred Seventeen Thousand Dollars ~$~ t7,QO0}per month plus or mines ten percent ~~Q~~~. ~f Developel• satisfies all of the Mandatory Milestones except to the 5 extent the N~andatc~ry Milestone i'ar the Pro'ect Pro .Forma has waned b Alam J been y eda pursuant to Section 4.2,2 above} on ar be~a~•e the submission and carnpletion elates r©vided on Exh' ` attached h p ~b~t $~~ ereto, the Parties shall meet and cQnfe~• in ood f=aith to reevaluate the amount g andla~ rate to be expended by Develo er the~•ea~'ter pursuant to this Section p G.4.4 based an mutually acceptable pz•ojcctions and shall revise Section 'x,1,7 below to rel~lect any mutually agreed upon an~aunt and~ar rate ` adjustment consistent with mutually agreed upon revisions to this Section G,4,4, C~,4.5 T`e~iminatian, As part of the establishment of the Developer Consultant Casts Account u~°suant to Section G p ,4, ~, l above, tl~e Pa~'ties shall instruct Escrow folder t hat upon termination o~ this Agreement any surplus l:unds in the Developez• ~ansultant Costs Account remainin a~ g tee ~a} tl~e completion ol:~ the ninety X90} day negotiatin eriad Burin this A, x•eement w g p g which g as terminated, and fib} payment of Devela er Consultant Develo rr~ent Casts in •~ p p cup ~ ed by L~cveloper after the Effective Date of the first Amendment ~~nd ria~w p to such tc~•~~ninatian, shall be paid either to Alameda ursuant to r te~•n~ination ~~~•su p a p ant to Section 8, ~ of this Agreement, or to Developea~ pu~•suant to a termination ursuant to Se ` of this A ~~ p ct~ons $.2 nr 8,3 g Bement, Alameda shall have no obiigatio~z wl~atsaever to pay any Developer Consultant Costs, whethe~• incur~•ed or at'ter termination of this A r pr~ar to g Bement, This Section G,4,5 shall survive the expiration or te~'mination of this A reerr~en g t. h, N"ew Section C,5, Section ~ of the A reeme ' the f'ollawing new Section C ~ g nt ~s het•eby al~ended to add ,5. Section G,5 p. a.~ment of Consultants, x,5.1 Sul 18 2007 tl~rou h effective .,., Developer ~•epresents tend wa~~rants that it shall pay w~th~n thi~•ty ~~0}days of the El+'i:ective Date of the first Amendment, all unpaid Developer Consultant Costs incurred Burin th . , from Sul S 200 g e pe~`~od Y a 7 to the Efi~ective bate ol" the ~i~~st Amendment except to the extent any such Developer Consultants Cos ~ • } subject to dis ute bet is aye p weer Developer and the applicable consultant, G~5~2 Effective Date throu h A ril ~ 9 2. UD8. Commencing on tl~~ Effective date a~' tl~e ~" ~rst Amendment, Developer shall pay Developer's costs incur~•ed solely from work on the Project including consultant and legal fees and costs of Developer's third-party consultants and attorneys} incurred during the period I~rarn the :l~ffective Date of the First Amendment to April 19, ~QOS at a rate of One hundred Seventeen fihausand Dollars ~,~ 117,Q~p~ per month plus ar minus ten percent ~ 10%a} prorated far the parti al months}, i. Amended Section 7~1,~. Section ~,i,2 of the Agreement is hereby deleted in its entirety and ~•eplaced with the following; 7 ~ ~ ~~ Failu~'e of Develo er to 11~ake Re nested De asits, 7.1.x, ~ ~n the event Developer fails to make the Initial Deposit or any Quarterly Deposit pursuant to the procedure set f4~•th in Section G of this Agt•eetnent, Alameda shall have the right to give written notice the~•eof to Developer specifying the amount of the deposit which was not made. Following the receipt of such notice, Developer shall have fifteen ~l ~} business days to make the required deposit and Alameda shall have the right to suspend all pt•e-Dcvelopment'work being perl"ormed by thi~•d parties paid by Alameda during such cure period. if Developer has not then made the requi~•ed deposit, Alameda shall have the right to tet•mi~~ate this Ag~•eetnent ~y w~•itten notice to Develope~y, 7~ 1..2,1 In the event Developer 1'ai is to m~tl~e the Z~~itial Developer Co~~sult~tnt Deposit or any Developer Consultant Cost ~uat•tet•ly I~cposit pursuant to the procedure set Earth in Section G of this Ag~~eement, Alameda shall have the right to give w~~itter~ notice the~•eof to Developer specifying the ~trnount of the deposit which was rat made, Following the ~•eceipt ol~ such notice, Developer shall have fifteen ~1S} business days to make the required deposit, ~~ Develapet~ has not then rnado the required deposit, Alameda shall have the taight to terrrtinate this Agreement by w~wttten notice to Develape~•, j. New Section 7,1,7, Section 7 of the Agreerent is hereby amended to add the rollawing Section 7, ~ s7_, x',1,7 Failure ol" Develo per to Pa Develo er Consultant Costs, 7~ 1..7,1 if at tl~e end ol" the thi ~•ty ~3a} day pe~•i ad following e~~ch Developer Consultant Cost Quarterly Deposit, Developer has failed to expend '~ht•ee Hundred Fifty ~rhousa~td 7 Dollars ~$~50,QQ0} subject to the tern percent ~10°~a} tolerance provided in Section ~,~,~ above dut~ng the prior gua~~ter, then such failure shall be a Developer event of Default and Alameda shall have the right to terminate this Agreement by written notice to Develope~•, 7. x,7,2 ~f as of April l~, ~OaB, Developer has failed to expend Cane Hundred Seventeen Thousand Dollars ~$~ 17,~00~ per month plus or minus ten percent ~l~°~a~ prorated for the partial rnanths} required by Section C,~,~ above, then sucf~ failure shall be a Developer event of Default and Alameda shall have the right to tet•rninate this Agreement by wt•itten notice to Develo~aer, 4. Amended exhibit ~3-i, exhibit B-Ito the Agreement is deleted in its entirety and replaced with Exhibit ~~~ attached hereto, 5. Amended exhibit B~2. exhibit ~~~, to the Agreement is deleted in its entirety and replaced with Exhtb~t ~WZ attached hereto. C. Amended Exhibit C, exhibit C to the Agreement is deleted in its entirety and ~•eplaced with Exhibit ~ attached hereto, 7. Arrthori~. The persons signing below represent that they have the authority to bind their ~•e,spective pa~•ty, and that all necessary baa~~d o~ di~•ectars', sha~~eholders', p~~rt~net~s', redevelopment agenc;y's ar other app~•ovals have been obtained, 8. ~o~~t~ter~~trts, This First An~endrnent may be signed by diffe~•ent parties he~•eto in counterparts with the same ef~cct as it the signatures to each counterpa~•t were upon a single instrument, All co~tnte~•parts shall be deemed an original of this First Amendment, 9, A reetnent in Full Force and effect, except as otherwise exp~~essly modified by the terms of this First Amendment, the Agreement retrains ul~changed and in fell force and • el 1' eC t. ~1~crr~ccc~~~~~ o~'~c~g~ ~~~te~~tio~c~~l,y ~a~ccr~k. ~ 8 IN 'U~ITNESS ~L1'~IERE~~, the Parties lave executed this First Amendment as of the day and year first above written. ARRA: Alameda Reuse and Redevelopment Authority, a joint powers aut~aority formed under California la~v By: Name: Title: CIC: Approved as to farm.: By ~ ~~ Name: ~~~ ~ ~~ ~ Title: ~ ~ ~~-~.~~ ~~ ~ ~- ~. ~~,~ ~~: ~..~. Con~n~unity Improvement Com~~ni~sion of tl~e City of Alameda, a public body, corporate and politic ~y: Approved. as to form.: N rne• B : ~ ~~~_. a y Title: Name: r ~ ~Y~ ~ ~~ Title: '~ ~' ~~... CITY: City of Alameda, a municipal co~•poration By: Approved as to form: e .~ Nan1e: By: ~.. ,~~ Title: Name: .. ~~`' Title: 9 D~~I~L~P~R, SCC Alameda Point LLC, a llelaware li 'tecl liability company By; Name: _ lJy~.~ V L ~~ TiCle; ~-ax ~5~. ~o Schedule of 'erfc~rma~ce ~Manda~o~•y ~iles~anes} ~.il defined terms nat defined herein s~~al~ have the respective meanings ascribed to them ~n the Ag~~eernent to which this Exhibits-1 is attached, ~n Iess of}~e~~wise provided, ail Mandatory Mi lestanes are measured ~r•om the ~~~ecti ve Date off` the ~riginai agreement July ~ ~, ~Da`~}, .~., Mandator Milestone Submission Date Master Pr~o~ec~t Schedule ~, Development Concept ~'hirty ~3U} business days; updated ciuarterly therea~te~~ Septe~mbe~~ 19, ~QQB ~. ~nf~•ast~•ucture plan ~. 3~~siness Plan S. Entitlement A~pplicatio~ B. Mandator NilestQne 1. P~~a~ect P~~a l~'arma Septembe~~ 19, ~Ot~B September ~ 9, ~0~~ November l~, 2QU8 Completion Date a~ernbe~• ~~, ~~os ~~ ~7~hibl~ ~M~ ~ehedule o~ ~er~ax•mance ~Non~Man~atory Milestones} All terms not defined herein shall have the respective mea~~ings ascribed to them ire the Agreement to which this Exhibit ~~2 is attached. finless otherwise p~~ovided, all Non-Mandatory Milestones are measu~~ed ~~•am the Effective Date afar example, eight fig} mo~~ths means the date which is eight ~8~ months after the Effective Date}, Nan~~andata~y Milestones described below are good faith estimates by the Fa~~tie~s of the time reQui~~ed to complete the T~~ansaction Documents, Na~n~Mnnc~ator Milestone tom ~et~on date ~, ~~C NIC~,~ amendment ~4 months ~~, Submit ~D~ applic~~tio~~ 1.9 months ~~, l~'inali~e EDC 11~~A Amendment 2~ months ~. N~~~ Supplemental Tnvi~~onmentai ~4 months In~pac~ State~ent ~~~~~} a. ~~-o~ect soaping 14 months b. ~i~•c~~late D~~aft ~E~S l~ r~nonths ~, ~-e~~~k~ngs ~tr~d cQm~~nents ~9-2~4 months -.~ d, ~'inali~e SE~~ Z~ mo~~ths ~, Section ~aG Me~r~o~ran~um ~4 months a, Devise historic resau~~cos ~3 rnontl~s ~•e tart ~, Carnpiete economic study on bui~din s 15 months e. ~inali2e section iQG N~en~orand~am ~~ months amondment ~2 4~ US~~wSINN~~'S 13io~agicai Dacumen~s ~4 monta~ a, Biological Assessmentlreinitiate l~. months Section 7 Consultation with ~]SFwS b. Finalize new Biological 24 months ~ inion with ~JSPwS c. Predator Management 24 mouths A regiment d. Determine if NM~`S Biological 18 months opinion necessarylcar~cluct biological Assessment e~ Pinali2e NM~S Biola ical ~ ir~ian ~~ months 5, ~~r~~ Transfer Documents ~4 months a. Finalize Dx•aft Davy Teem Sheet I8 months b, Dr•~~ft I~T~A I ~ months c. Draft Admit~ist~•ative order ~AC~~~ 17 months with Environmental Protection Agency ~~PA}, Department of Toxic Substances ~ont~•ol, regional wate~• duality Control ~3oard d. Draft F~S~T I $ months 11r P~lblic Commentl~'in~tlize ~TCA, ~ I months A~~, l~aS1~T, submit ro Gave~•na~•ILPA f. App~•oval by Gove~-no~•IIPA ~~~ ~4 months -. g, Final remediatian cont~•act and z4 months environtner~tal insurance alines G. ~~Q,~ Documents ~4 n~on~hs a. Project scopi ng 1 ~ months bs Notice of Preparation IS months c. circulate Draft Envix•anznental Impact l~ months Re ort ~~~R} 3 d, ~.ea~•ings and commentsifinalize EIR 2~ months 7, ~AA.I~.~A ~4 months a, AAA executed ~4 months b~ D~'a~t ~~~ S months c. Public hea~•ings 18-24 months d, Approval o#'' DD~1 24 months 8. Dove~oPme~~t A~~'ee~nentl~nt~tlerr~er~ts 2~ months a. Submit ~ntitlemcnt ~.pplication I C~ months b, Public hca~•in sla royals II~~Z4 months c, Development Agr~eemenc ~in~~lized 2~- months and a ~~ovals ~~anted ~, T~~e~ands''rust E~cch~~nge ~.g~r~~~ent ~4 months a. Submit d~•aft ~'idelands `rust 12 months ~,xchange Ag~~eement to ~alifo~•nia State sands commission ~C~S~`} _ b, beach agreement are language with 8 months ~LSC sta~~ c, C~bt4tit~ ~a ~•oval afCLSC ~4 months ~0, Pr~blrc Piann~ng Proce~~s Z4 months a. ntroducto~y meeti ngsl 3 months const~•a~nts anal sis b, ~i~•st round public planning cl~ax•rettes 4-~ months c. Second ~~ound p~~blic planning ~-14 months ChatYrVttos d. Develo n~ent ponce t ubiic review l4 months ~4 e, ~~s~aric ~~~eserv~tion Plan pubI~c I~~~C months rcv~ew ~. focused ta~ic community 7n~etings I4~ 1 ~ months g. ~carings and commcnts o~ I µZ4 months ~~R~DDAIen~i ti e~men is ~5 ~xhib~~ C annual Budge [Attached] 1G N;il~i~i(amc1~PlDocslw-ANA (Alameda paints ~ 1st Ar~teny ~2• ~ 2•os~ "~ r~' Q 1'';r:}~ E1:,; ~f-~y thJ nnW~' ~Cld~ CAI ~*J ~y A e~r~ ~f•7 ~q {~ ~,_,..uv~'~.:. ..y1H~+,.a A.! ~ E;~ `V ~VlJ1 ~V '(^u~~~ ,1~~}', ~Ly~ ~~k fh" ~/W~ .~.(^.`I~ (~y"-ryyr M,! /~~ /{~~ ~~q ~/~ +~.7ir~~a-I~• ~ N Q t`hVl 4V 0 ~+I ~ ~ Y V W {l µ1 SF: `-" ~ ~ ~Y V C~ ~ ail ar+~aY.• ~;-,.~"j5- • =~,~~~L~r. [!} ~ i~3 w , ~~~ t l(7 {l? M ~D G(3 Q C? L!? ?Qa ~~~' r. ,- ~ O ~ ti N ED l1"} fr3 N Oa +- ~ CU l+~} N *~ tCj N ~ ~ M~.., .~.pw~~*~~ ,~ ~,~-7 Lp [,p ~n EF} t~ b~} Ef} {fl ffl ~,A-• t~? "6'~i LCf7] }N~,~ /i~~Cy) l~1i~' 69 [N~y ~N~y ~.-n- ~ ~s~ ,~y1~~ ~ Y E:fl Eft ~ Eft V 7 ~,~ V A G+ '.77 V 7 F(] vT 47 ~ 4 ~~v~yr ~~;i~~ ~, pr . r icc~y ; kII~..' 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