2007-07-18 PacketCITYOFALAMEDA•CALIFORNIA
SPECIAL JOINT MEETING OF THE CITY COUNCIL,
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY (ARRA), AND
COMMUNITY IMPROVEMENT COMMISSION (CIC)
WEDNESDAY - - - JULY 18, 2007 - - - 7:01 P.M.
Location: 21,ty_221m9.11_911102er, 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.
PLEDGE OF ALLEGIANCE
1. ROLL CALL - City Council, ARRA, CIC
2. AGENDA ITEM
2 -A. Recommendation to approve Exclusive Negotiation Agreement
(ENA) between the City Council, ARRA, CIC and SunCal Companies
for the Redevelopment of Alameda Point. (Development Services)
3. ADJOURNMENT - City Council, ARRA, CIC
Beverly J. n i M yor
Chair, Ala eu e and
Redevelopment Authority and
Community Improvement Commission
CITY O F ALAM E D A
Memorandum
To: Honorable Chair and Members of the Alameda Reuse and
Redevelopment Authority
Honorable Chair and Members of the Community Improvement
Commission
Honorable Mayor and Members of the City Council
From: Debra Kurita
Executive Director /City Manager
Date: July 18, 2007
Re: Exclusive Negotiation Agreement for Alameda Point Between the
Alameda Reuse and Redevelopment Authority, the Community
Improvement Commission, the City of Alameda, and SCC Alameda
Point, LLC (SunCal)
BACKGROUND
on September 21, 2006, Alameda Point Community Partners (APCP) notified the
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Alameda Reuse and Redevelopment Authority (ARRA) that it was withdrawing as the
Alameda Point Master Developer five years after it was selected. APCP cited a
downturn in the residential real estate market that no longer supported the $108.5
million land purchase price tentatively negotiated with the Navy as its primary reason for
not moving forward. Following APCP 's withdrawal from the project, the Navy agreed to
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an ARRA - sponsored process to identify a new master developer. The Navy's
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was
agreement predicated on a timely process and retention of the $108.5 million
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purchase price rice and the previously agreed upon payment schedule contained in the draft
conveyance term sheet.
At its October 4, 2006, meeting, the ARRA authorized staff to issue a Request for
Qualifications (RFQ) to determine if there were developers interested in becoming the
new Alameda Point Master Developer (Master Developer). SunCal responded to the
RFQ through initial and subsequent responses. On May 8, 2007, the ARRA selected
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SunCal as its preferred Master Developer and established a 60 -day due diligence and
Exclusive Negotiation Agreement (ENA) negotiation period.
The 60-day due diligence period began on May 14 and concluded on July 12. During
that period, SunCal established a comprehensive database on Alameda Point built on
historic and current documents, studies, ordinances, resolutions, and policies related to
Honorable Chair and Members of the Alameda Reuse and July 18, 2007
Redevelopment Authority Page 2 of 5
Honorable Chair and Members of the Community Improvement Commission
Honorable Mayor and Members of the City Council
the base. Items provided to SunCal ranged from Navy environmental clean-up
documents and ARRA leases to historic preservation studies and wetlands delineation,
maps. SunCal summarized each document received as part of its due diligence
exercise. In addition, SunCal met with staff and ARRA consultants for briefings on
affordable housing, historic preservation, fiscal neutrality, the Public Trust, the Biological
Opinion, environmental clean -up activities and status, and leasing activity. Staff also
facilitated informational meetings between SunCal and the Navy as well as
environmental regulators. Simultaneous with this due diligence effort, SunCal worked
with staff to negotiate an ENA as discussed below.
DISCUSSION
The purpose of the ENA is to (1) define the redevelopment and entitlement of the
Alameda Point project site; (2) provide a framework for the negotiation of a Disposition
and Development Agreement (DDA) for Alameda Point; and (3) establish a process for
negotiating and executing various other transaction documents, such as California
Environmental Quality Act (CEQA) documents, and third -party agreements like the
Finalized Navy Term Sheet. The ENA is attached.
Staff and SunCal met on numerous occasions over the last 60 days to negotiate the
provisions of the ENA. The following summarizes the major terms of the agreement:
1) Length of Term. The term of the ENA, including completion of CEQA review, all
entitlements, and a DDA, is 24 months. A "progress extension" is automatically
provided if: (1) all mandatory milestones have been achieved; (ii) review of the
Project under CEQA is in process; and (iii) a complete Entitlement Application
has been submitted and is pending before the City. The extension will continue
until Alameda takes action on the Entitlement Application or, if slowed by
litigation, until litigation on the project is resolved. A one -year extension may also
be considered by mutual agreement of the ARRA Board and SunCal.
2) Schedules of Performance. The ENA provides Schedules of Performance that
include all mandatory and non - mandatory milestones. Mandatory performance
milestones consist of specific SunCal submittals, such as Development Concept,
Infrastructure Plan, Business Plan, and Entitlement Application. Mandatory
milestones must be completed within specified timelines and are subject to
administrative extensions within the overall time frame of the ENA. A midpoint
Conditional Acquisition Agreement (CAA) is an optional task and can be pursued
if desired by SunCal. The CAA is not a required milestone and will not affect the
completion of the mandatory milestones.
Third -party agreements are non - mandatory milestones. If any third -party
agreement, such as special legislation for Tidelands Trust, is not finalized before
Honorable Chair and Members of the Alameda Reuse and July 18, 2007
Redevelopment Authority Page 3 of 5
Honorable Chair and Members of the Community Improvement Commission
Honorable Mayor and Members of the City Council
the DDA is approved, then the DDA will outline performance milestones for
finalizing any outstanding third -party agreements and any remedies for not
meeting those milestones. Exhibit B of the ENA outlines the proposed timelines
for both mandatory and non - mandatory milestones. Additionally, the ENA
requires that SunCal submit a Project Master Schedule to the ARRA within 30
days of execution of the ENA and on a quarterly basis thereafter.
3) Initial Payment and Cost Recovery. SunCal paid $100,000 to the ARRA at the
commencement of the ENA negotiations, and within five days of execution of the
ENA, will pay an additional $000,000 to the ARRA for a total of $1 million. The
deposit will be placed in an interest -- bearing account and will be applied to the
land purchase price, if the project site is conveyed to the Developer. If SunCal
defaults under the terms of the ENA or terminates this agreement, it forfeits any
right to the $1 million.
The ENA also includes cost recovery provisions that require SunCal to reimburse
the ARRA for its pre - development costs, including third - -party consultant and legal
costs and ARRA staff time. The ENA also outlines provisions for amending the
budget, as necessary. Exhibit C of the ENA is the proposed cost recovery Annual
Budget, which is estimated at $2.7 million over the 24 -month term of the ENA.
SunCal estimates that it will expend approximately $10 million during the ENA
period.
4) Project Labor Agreement. SunCal has agreed to negotiate in good faith to
enter into a project labor agreement for the construction trades.
5) Fiscal Neutrality. The ENA includes provisions for the mitigation of any adverse
impacts of the project on the current and future General Fund budget. In addition,
the provision in the ENA related to the use of tax increment financing places a
priority on the Community Improvement Commission (CIC) and ARRA honoring
their debt and operating expense obligations before tax increment funding flows
to the project.
6) Project Pro Forma. The required components of the Project Pro Forma, jointly
prepared by Alameda and SunCal, are outlined in the ENA and include provisions
related to profit participation and the Internal Rate of Return (IRR). As currently
proposed, the IRR shall be based on all appropriate costs, with eligible costs to
be negotiated at a later date, and achieve a 20 to 25 percent return to developer,
provided, however, that the precise IRR shall be subject to negotiation of the
parties as part of the DDA. Additionally, any profit participation by the CIC from
the project, if public tax increment financing is used, will occur after SunCal
receives the IRR negotiated as part of the DDA.
Honorable Chair and Members of the Alameda Reuse and July 18, 2007
Redevelopment Authority Page 4 of 5
Honorable Chair and Members of the Community Improvement Commission
Honorable Mayor and Members of the City Council
7) Existing City LeaseslUses. There are four existing City uses specified in the
ENA that will be continued after transfer of the land from the CIC to SunCal.
These uses include City Hall West (Building 1), Fire Station #5 (Building 6),
Alameda Power & Telecom Headend (Building 2, Wing 3), and the O'Club
(Building 60). If SunCal decides to redevelop any of these buildings, it will be
responsible for relocating the public use to a comparable facility at its sole
expense. Other existing City uses or leases may be included in the final
development plan but will be negotiated as part of the DDA.
8) Transfers. As stated in the RFQ process, SunCal does not self- finance
development projects, but instead seeks equity funds from third -party partners.
While SunCal may invest some equity funds into the project, its primary
contribution to the project will be expertise and experience successfully facilitating
complex development projects. Given this partnership structure, it is crucial for
SunCal that the ENA allow for an automatic transfer to a developer entity that will
include SunCal and its third -party equity partner, subject to certain terms and
conditions to which all parties can agree. The resulting ENA has terms and
conditions that allow automatic transfers while protecting Alameda's long -term
interest and investment in Alameda Point.
There are three major components of the agreed upon terms and conditions of
the automatic transfer provision:
(i)
Financial Stake. It is important that SunCal have sufficient financial
stake in the project to create an incentive for it to remain committed to
the project. The ENA states SunCal must contribute at least 15 percent
of the cash capital required to fund the pre - development phase of the
project, and at least five percent of the equity required for funding the full
implementation of the project, subject to further negotiation in the DDA.
(ii} Day -to -Day Management and Control. The ARRA selected SunCal
through a competitive RFQ process and will be assured that the SunCal
principals represented to the ARRA as the project leadership and team
remain in control of the day -to -day management of the project. The
ENA does not allow SunCal to be removed from day -to -day control of
the project unless the replacement project management entity is
acceptable to the ARRA.
(iii) Removal of Developer. The ARRA selected SunCal based on its
specific qualifications and expertise. Therefore, the ENA states that the
ARRA must consent to the removal of SunCal during the pre-
development phase, and that the DDA will specify the terms of a
Honorable Chair and Members of the Alameda Reuse and July 18, 2007
Redevelopment Authority Page 5 of 5
Honorable Chair and Members of the Community Improvement Commission
Honorable Mayor and Members of the City Council
"qualified developer" for potential replacement of SunCal during project
implementation.
Upon execution of the ENA, SunCal will commence its 24 -month process to achieve the
milestones outlined in the ENA Schedule of Performance.
BUDGET CONSIDERATION /FINANCIAL IMPACT
There is no financial impact on the General Fund, CIC, or ARRA budgets. The cost
recovery provision in the ENA will ensure that the selected developer pays for staff
costs and consultant expenses.
RECOMMENDATION
Approve the Exclusive Negotiation Agreement with SCC Alameda Point, LLC.
ectfu l ly s
Leslie A. Little
Development Services Director
By: ebbie Potter
Manager, Base Reuse & Community Development Division
By: ennifer Ott
Redevelopment Manager
LAL /DP /JO:sb
Attachment
1. Alameda Point Exclusive Negotiation Agreement
ALAMEDA -POINT
EXCLUSIVE .NEGOTIATION AGREEMENT
. THIS ALAMEDA POINT EXCLUSIVE NEGOTIATION AGREEMENT NT
"Agreement ") is entered into as of July 20Q7 (the Effective D " " Date"), by and between the
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY a Authority
Authoi;�ty
established by the City of Alameda and the .Community Improvement y P t Commission under the
California Joint Exercise of Powers Act and a public entity lawful] created and existing-under "ARRA" �
the State of California
(the }, the COMMUNITY IMPROVEMENT COMMIS
OP THE c17'7� OF ALAMEDA, a public SIGN
P b is body corporate and politic (the "CIC"), and the
CITY OF ALAM17EDA, a municipal corporation (the "Cx " and to e �� "City", together with ARRA and CIC,
"Alameda") and SCC Alameda Point LLC, a Delaware limited liability ilxty cornpanY
( "Developer " ). Alameda and Developer are individually referred "
Y to as a Party and
collectively referred to as the "Parties ".
RECITALS
This Agreement is entered into upon the following facts, understandings intentions Parties: gs and intenxons of
A. The United States of America, acting by and through the Department
("Navy") p nt of the Navy
is the owner of certain real property located within the Ci ty of Alameda, State of
California commonly referred to as the former Alameda Naval Air Station, Point", which was closed • • - ion, now known as
with losed as a military installation and is subject to disposal pursuant
to and in accordance with the Defense Base Closure and p p
d Reali gnment Act of 199 �, as amended
(Pub. Law No. 101-510). The property that is the subject of this Agreement consists 14QQ acres l ] g moot consists of
Y ocated at Alameda Point referred to as "Phase 1", "Phase 2"
(including the area commonly known as the "Northwest Territories"), and "Phase 3" (which is
included strictly for purposes of entitlement at a programmatic level) (col]ectively, the " Site" , Phase 1 P a "Project
} Phase 2 and Phase 3 are shown on the "Ma of the Project Site", as Exhibit A. Phase p eI ct Site ,attached
1 and Phase 2 are sometimes referred to .collectively as the
i
"Property ". Certain portions of Alameda Point are not
part of the Project Site.
13. In accordance with procedures established under federal and California
governin the planning, disposition alifornia state law
g P g, and reuse of closed military bases, ARRA adopted the
Alameda Point Community Reuse Plan the "Corm p
� "Community Reuse Plan "} on January 31, 1996
with subsequent amendments in 1 997. '
C. On March 3, 1998, the City Council of the City approved and adopted Improvement Plan (the Y pp opted (1) the
P " APIP Comrnnnjty Improvement Plan ") for the Alameda
Point Improvement Project (the "AMP Project" by Ordinance No. •
. � Y 2754. The property subject
to the APIP Community Improvement Plan is referred to herein as the "APIP Area". Site is located within APIP Pra j ec k Area .
The Project ted within the APIP Project Area.
D. Subsequently, in October 1999, the Navy issued a Final Environmental for the Disposal Y rcnrnental Impact
p al and Reuse of Naval Air Station Alameda and the Fleet and Industrial
Supply Center, Alameda Annex and Facility. The Record of Decision regarding the disposal and
reuse was issued by the Navy on February 29, 2000,
E. The Navy and ARRA entered into a Lease in Furtherance offConveyance dated
June 6, 2000, as amended by that certain Amendment No, 1 to the Lease in Furtherance of
Conveyance between the United States of America and the Alameda Reuse and Redevelopment
Authority for the Former Naval Air Station Alameda, dated November 28, 2000 (the "LIFOC"),
and a No -Cost Economic Development Conveyance Memorandum of Agreement dated June 6,
2000 (the "EDC 1140A ").
F. ln.2003, the City amended its General Plan to incorporate the policies and and
use designations contained in the Community Reuse Plan. The allowable number of residential
units and commercial square footage differed from those contained in the ARRA's 1 998 EDC
application. As a result, the Navy questioned whether ARRA remained eligible for a No -Cost
EDC. In lieu of submitting an amendment to the No --Cost EDC application, ARRA elected to
negotiate a "For -Cost" EDC with the Navy.
C. In 2004, ARRA committed $33 million to a pre - development effort to: (1)
prepare a land plan in conjunction with the community that would identify key entitlement issues
and provide more certainty to the project approval process and which culminated in the Alameda
Point Preliminary Development Concept dated February 1, 2006, prepared by ROMA Design
Group (the "PDC "); and (2) negotiate a draft conveyance term sheet ( "Draft Navy Term
Sheet") with the Navy. -
H. On.October 4, 2006, ARRA authorized a Request for Qualifications ( "RFQ ")
process to select a developer willing to redevelop the Project Site. SCC Acquisitions, Inc., a
California corporation ( "SCC Acquisitions "), an affiliate of Developer, responded to the RFQ
through an initial response on or about December 4, 2006 and through a subsequent response on
March 8, 2007 (the "Developer Response ").
1. On May 8, 2007, based on the Developer Response, ARRA selected SCC
Acquisitions to have an exclusive 60-day due diligence period (the "Due Diligence Period ") to
determine its interest in becoming the new master developer of the Project Site and entering into
this Agreement.
J. On May 14, 2007,- ARRA and SCC Acquisitions . db a SunCal Companies entered
into that certain Alameda Point Memorandum of Agreement (the "Developer MOA "), which,
among other things, established a sixty (60) day period for the negotiation of this Agreement.
K. The purposes of this Agreement are to (I) define the redevelopment and
entitlement of the Project Site (the "Project ") (2) provide a framework for the negotiation of the
terms of a Disposition and Development A greement (the "DDA ") for the Project and the
Property, and (3) establish timeframes for and to set forth the process by which the Parties shall
negotiate and execute the DDA and the Transaction Documents (as defined in Section 3 below).
In consideration of the mutual covenants contained herein, Alameda and Developer agree
as follows:
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Section 1, Negotiations.
1.1 Good Faith Negotiations. The Parties, during the Exclusive Negotiation Period
tod
set forth in Section 2.1 of this Agreement, shall negotiate diligently and in good faith to are re
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the Transaction Documents (as defined in Section 3 below) and complete the tasks set forth in
Section 3 below relating to the Project. and the Project Site.
1.2 Exclusive Negotiations. During the Exclusive Negotiation Period, - Alameda
covenants and agrees that it shall negotiate exclusively with Developer regarding the Project and
the Project Site and shall not solicit, market to or negotiate with any other person or entity
regarding the Project and the Project Site or solicit or entertain bids or proposals to do so; except
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that Alameda may, in the routine course of governmental affairs, contact (or be contacted by),
discuss, or meet with the Navy or any other governmental entity or Alameda may respond to
inquiries regarding Phase 3, and Developer acknowledges that such contact, discussions,
meetings, or responses may pertain in whole, or in part, to the Project and/or the Project Site.
The Parties acknowledge that the Navy inay, in its discretion, pursue an alternative . disposition of
the Phase 3 portion of.the Project Site.
1.3 Not a DDA. The Parties do not intend this Agreement to be a DDA, purchase
agreement, ground lease, license, option or similar contract.
Section 2. Term.
2.1 Tenn of this Agreement. The term of this Agreement (the "Exclusive
Negotiation Period") shall commence on the Effective Date and, subject to extension P ursuant
to Section 2.2 below, shall terminate on the second anniversary of the Effective Date.
2.2 :l &t nsion of the Exclusive N e otxati on Period.
2.2.1 Mutual Extension. The Parties acknowle4ge that their ability to prepare
the Transaction Documents and complete the tasks set forth in Section 3 below is dependent
to
some extent on reaching agreement with certain third parties, including the Navy (for the transfer
of the Property) and the California State Lands Commission (with respect to the ublic trust), � • � p )'
and
may also be dependent on achieving certain regulatory approvals and satisfying certain other
conditions that are outside of their control. if before the execution of the DDA by the Parties, of such third-party a ee conditions Y � '
any p y gr ments, regulatory approvals or other conditions are not finalized,
obtained or satisfied, then to the extent practical the Parties shall in good faith negotiate the DDA
and characterize such third -party agreements, regulatory approvals or other conditions as
conditions precedent to the obligations ofthe Parties to the close of escrow for conveyance of the
Property pursuant to the DDA. Notwithstanding the foregoing, if the Parties are unable to meet
the date for completion of the Non - Mandatory Milestone (as defied in Section 4.3 below) for
the DDA set forth on the Schedule of Performance (Non- Mandatory Milestones) attached hereto
as Exhibit B-2 (the Non - Mandatory Milestone Schedule of Performance") due to the
inability of the Parties to complete a Transaction Document because of the action(s) or
inaction(s) of a third party, then the Exclusive Negotiation Period may be extended up to one (1)
year by the mutual agreement of Developer and Alameda (as determined by its Board of
Directors, Board of Commissioners and City Council).
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. 2.2.2 Progrre s Extension. If Alameda can make the following findings (as
determined by its Board of Directors, Board of Commissioners and City Council): (a) that
Developer has met all of the Mandatory 'Milestones (as defined in Section 4.2 below), as the
same have been extended as provided herein, or except to the extent the Mandatory Milestone for
the Project Pro Forma (as defined in Section 3.2,4 below) has been waived by Alameda pursuant
to Section 4.2.2. below; (b) Developer has provided a Project description sufficient to permit the
City to review the Project under the California Environmental Quality Act (Public Resources
Code §§ 21000- 21177) ( "CEQA "); and (c) Developer's Entitlement Application (defined in
Section 3.2.6 below) has been filed with the City, the Exclusive Negotiation Period shall be
extended automatically until Alameda has made its final determination with respect to the
approvals requested in the Entitlement Application and the period for any legal challenge thereto
has passed without such challenge, or if such challenge has been made, such challenge has been
fully and finally resolved.
2.2.3 Litigation Force Majeure Extension. The Exclusive Negotiation Period
shall be extended automatically in the manner provided in Section 5 below.
2.3 Expiration of the Term of this Agreement. This. Agreement shall automatically
terminate upon the earlier of 0) the effective date of a Conditional Acquisition Agreement (the
"CAA ") (as described in Section 3.3 below) executed by the Parties, or (ii) expiration of the
Exclusive Negotiation Period, as extended pursuant to Section 2.2 above, and neither Party shall
have any further right or obligation under this Agreement except with respect to any obligation
which expressly survives the termination or expiration of this Agreement.
Section 3. Tasks to be Completed. During the Term, Alameda (or the applicable constituent
thereof) and Developer shall negotiate diligently and in good faith the following agreements or
documents and use commercially reasonable efforts to complete the following tasks within the
_time periods provided in the Schedules of Performance (as defined in Section 4.1 below) as the
same may be amended pursuant to Section 2.2 above. The term "Transaction Documents"
shall include all documents, plans and agreements described in this Section 3.
3.1 Finalized Navy Term Sheet. Developer shall participate with Alameda to
negotiate with the Navy to finalize the .Draft Navy Term Sheet, setting forth the terms and
conditions for the conveyance of Alameda Point to ARRA, in a manner satisfactory to Alameda
and Developer (the "Finalized Navy Term Sheet "), which shall, to the extent possible, be
consistent with the Plans (as defined in Section 3.2 below) and other objectives contained herein.
3.2 Project Planning, Developer, at its sole cost, but subject to review and comment
by Alameda, shall generate the necessary analysis, plans, studies and pro formas to be able to
fully describe all aspects of the proposed Project and: to prepare the DDA (and, if applicable, a
CAA). Developer shall work with and make presentations to staff, elected and appointed
representatives of Alameda, other governmental entities and community stakeholder groups as
mutually determined by the Parties to permit preparation of the DDA (and, if applicable, a
CAA). The purposes of these presentations will be to keep decision makers abreast of the
process and to solicit input from key stakeholders regarding the plan. The final DDA (and, if
applicable, a .CAA) shall be based on and incorporate the following plans (collectively, the
"Plans ") and the Project Pro Forma (as defined in Section 3.2.4 below):
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3.2,1 Development Concept. Developer shall prepare a "Development
Concept" setting forth conceptual designs for the Project and Project Site and a fully descriptive
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program ()fuses. The Development Concept shall include an update of that certain Sports orts Complex Master Plan prepared by Mo ore Iacofaao Goltsman, Inc. dated May 19, 1 997
(the
"Sports Complex Master Plan "). It shall include a description of the hasin plan for the
P gP
Project and a proposed scope of work and schedule of performance, including key all ke milestones
for design, development and construction to completion of the Project. .
3.2.2 Infrastructure Plan. Developer shall prepare an "Infrastructure Plan"
which shall set forth the existing infrastructure associated with the Project Site and shall 1 describe
improvements and engineering required to implement the proposed Development Concept. In
preparation of the Infrastructure Plan, Developer shall analyze the existing infrastructure and
prepare a detailed analysis of infrastructure requirements, including a circulation, traffic,
transportation and parking plan, a phasing plan and a financing plan (including initial
construction cost estimates) for development of required infrastructure. The Infrastructure Plan
shall include analysis of the environmental .and geotechnical condition of the Project Site and
identification of environmental issues.to be resolved and associated cost estimates.
3.2.3 Business Plan. Based upon the Development Plan and the Infrastructure
Plan, Developer shall prepare a "Business Plan" that describes the financial and organizational
characteristics .of the Project -in detail sufficient -to support negotiation of the DDA. ( and if
applicable, a CAA). Specifically, the Business Plan will .0) include an organisational
plan, a •
marketing pro gram, a phasing and financing plan, public benefit plan, a public financing.pl
an, a feasibility
analysis, a project schedule, a project pro forma in electronic spreadsheet format (ii)
assumptions and resultin
include documentation and descriptions of all key cost and revenue assum g
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financial returns, and any additional supporting narrative, (iii) include Developer's plan for
financing the Project and related .financial fi.n�a (iv)provide p ,- p
J nciai assurances, and an overview of how the
Project. will cornnrience, function, achieve success, manage risk, raise ca p ital and
provide fiscal
neutrality to Alameda (as described in Section 3.2,4.2), taking into account initial assessments of
infrastructure cost and phasing, environmental issues, market analysis;
nal sis ; economic modeling,
Y � e ing,
financial modeling and other required technical studies. The Business Plan'shall be consistent
with Section 3,7.5 hereto. It is the intent of the Parties that negotiations of the Business Plan
shall be conteznporanems with negotiations of the Development Concept.
12.4 Project Pro Forma. Alameda and Developer shall
jointly prepare a
pro
.forma for the Project (the "Project Pro Forma"). Alameda and its financial
consultant shall
control and maintain the Project Pro Forma, which shall be made readily available to er
electronic Developer
in spreadsheet format. The Project Pro Foie .
a ��a shall reflect that except as described in
Section 3.7.5 below, Alameda shall have no financial obligation associated with Developer's
development on, or related to , the Project Site. P
a � .1 .. The Project Pro Forma shall contain all financial
considerations of the Project to be incorporated into the DDA, including a method for calculating following elements: g
32.4.1 IRR. The unleveraged internal rate of return ( "IRR ") to
Developer for the Project, which 'RR shall be based upon all appropriate costs ( as defined in the
Project Pro Forma), including personnel costs, incurred by Developer directly related to the
Project and the Project Site, including - Y
,] ng pre development expenditures and an agreed upon general
5
and administrative fee, to achieve an IRR to Developer of twenty percent (20 %) to twenty -five.
percent (25 %), provided, however, the precise IRR shall be subject to negotiation of the Parties
as part of the DDA.
3.2.4.2 Fiscal Neutrality. Developer shall cooperate in implementing a
municipal services district or other funding mechanism(s) (public or private) to ensure the
Project is fiscally neutral with respect to the City General Fund. The funding mechanism is
intended to (a) result in no negative impact to the, City's General Fund, taking into consideration
the reasonably anticipated revenues to the City's General Fund from the Project Site, and (b)
avoid negative effects to the existing or future operations of the City. The model for the funding
mechanisms provided in the Project Pro Forma shall provide for future fiscal neutrality and
preserve the current fiscal neutrality with respect to the General Fund, which shall include
funding for normal and customary municipal services, such as police and fire services.
3.2.5 Entitlement Plan. Developer shall develop an "Entitlement Plan" for the.
Project and the Project Site that shall include a list and provide a timeline for obtaining all land
use entitlements and approvals it will seek from the City, including (a) a General Plan
amendment, if required, (b) a master plan (the "Master Plan ") pursuant to the MX zoning
designation in the Alameda Municipal Code (the "MX Zoning ") for the development of the
Project Site, (c) a zoning amendment(s), (d) subdivision approval, (e) a development agreement
(the "Development Agreement") prepared pursuant to California Government Code Section
65864 et seq., vesting in Developer the right to develop the Project to, the scope, uses, densities'
and intensities described in the Master Plan and otheiimplementing ,regulatory.docume.nts and
necessary to implement the Development Plan, (f) environmental- review pursuant to CEQA, and
if applicable, the National Environmental Policy Act ( "N EPA "), (g) an .agreement between
Developer. and Alameda to provide for expedited processing by the City of all land use
entitlement applications including all environmental review required under. CEQA and funding
thereof by Developer (the "Expedited Processing Agreement"), and (h) such other entitlements
and approvals as Developer may request for the Project Site. Developer shall use Best Efforts
(as defined in Section 15.5 below) to implement and prosecute to completion the Entitlement
Plan.
- 3.2.5.1 P, raj ect Master -Scheme e. As a component of the Entitlement
Plan, the Developer shall prepare and maintain a project master schedule (the "Project Master
Schedule') that sets forth, in reasonable detail, the expected tasks necessary to complete ail of
the Mandatory and Non - Mandatory Milestones, Entitlements, and .at the Developer's discretion,
subsequent approvals, and the anticipated dates that these tasks . are expected. to be completed.
The Developer shall submit the initial .project Master Schedule to the ARRA within thirty (30)
business- days from the Effective Date of this Agreement and shall update such schedule and
deliver the updated schedule to the ARRA on a quarterly basis thereafter.
32.6 Entitlement A licati n. In order to meet the Mandatory Milestone for
the Entitlement Application, Developer shall submit its application for the following items
contemplated in the Entitlement Plan: (i) an initial draft of the Master Plan which shall include
all applicable components required under MX Zoning; (ii) application for CEQA review; and
(jii) an Expedited Processing Agreement (collectively, the "Entitlement Application "). -
Subsequexit to submittal of the Entitlement Application, Developer shall use Best Efforts to
6
submit all required supplemental information sufficient for the Entitlement Application to be
promptly determined to be complete by Alameda. Subsequent approvals will be necessary in
order to develop the Project, which may include, without limitation, development plans; master
demolition, infrastructure, grading and phasing plan; subdivision approvals; design review
approvals; demolition permits; improvement agreements; infrastructure agreements; grading
permits; building permits; site plans; sewer and water connection permits; and other similar
requirements.
3:3 CAA. On Developer's request and using.the information developed in the Plans,
Alameda and Developer shall negotiate a CAA which will provide the frameworkfor the
proposed transaction and the terms of the DDA, including but not limited to, the terms by which
ARRA shall acquire and convey the Property to Developer (the "Property Transfer(s)"). If a
CAA is developed within the Exclusive Negotiation Period, it is the intent of the Parties that the
CAA will,set forth 0i} a development program consistent with the Plans and the Project Pro
Forma and (il) the terms and condifons. precedent to the Property Transfers n
Transfer( s) includig3 without
limitation, approval of the CEQA Documents (as defined in Section 3.4 below) and .the DDA by
Alameda. Upon the request of. Developer, Alameda shall take all necessary action to place the
CAA on the agendas of each constituent of Alameda for a determination by each as to whether to
approve the CAA and upon approval thereof, Developer and Alameda shall execute the CAA.
The CAA shall also include provisions described in Section 3.6.6 below.
3.4 CEQA Documents. The Plans shall be of sufficient specificity to permit the
subsequent preparation of the docurrients required for environmental review of the Project as
required by CEQA .(the "CEQA Documents "), including an environmental impact report or
such other information and reports as may be required to permit Alameda to compl y with the
requirements of CEQA. Preparation of the CEQA Documents shall be a Non- Mandatory
Milestone and shall commence following satisfaction of the Mandatory Milestone for the
Entitlement Application. Execution of the DDA by the Parties and the closing of the Property
ert
P Y
Transfers) under the DDA shall be contingent upon certification of the CEQA Documents and
adoption of the mitigation measures described therein.
3.5 . Conditions to Property Transfers). The following shall be conditions precedent
to the Property Transfer: -
3.5.1 An amendment of the EDC MOA to permit a conveyance of the Property
from the Navy to ARRA in accordance with the Finalized Navy Term Sheet (the "EDC MOA
Amendment").
3.5.2 As required by the Finalized Navy Term Sheet, Developer shall provide
evidence adequate to ARRA of Developer's ability to secure environmental insurance including
but not limited to a Cleanup Cost Cap policy and a Pollution Legal Liability policy (the "PLL
Policy ") or policies to the extent such are required to execute any necessary Early Transfer,
provided that the PLL Policy shall not only be acceptable to the Navy, biit shall also be
acceptable to Alameda and shall name Alameda as additional insured(s), which acceptance b
� by
Alameda shall not be unreasonably withheld.
7
3.5.3 Environmental documents including financial assurance to regulators,
early transfer package including a Finding of Suitability for Early Transfer (the "FOSET ") and
Covenant Deferral Request (the "CDR "), Environmental Services Cooperative Agreement (the
"ESCA") or Early Transfer Cooperative Agreement (the "ETCA") or similar agreement, and
consent orders among the environmental regulatory agencies and other State of California and
federal officials to the extent such documents are necessary to facilitate conveyance of the
Property pursuant to the schedule of performance to be included in the DDA.
33.4. A tidelands trust exchange agreement or similar agreement between the
City and the California State Lands Commission to implement the exchange of lands into and out
of the tidelands trust area (the "Tidelands Trust Exchange Agreement"), pursuant to 'California
legislation adopted in 1999.
3.5.5 An amendment of that certain Memorandum of Agreement Among the
United States Navy, the Advisory Council on Historic Preservation and the California State
Historic Preservation Officer Regarding the Layaway, Caretaker Maintenance, Leasin g and
Disposal of Historic Properties on the Former Naval Air Station, Alameda, California, dated
September 1, 1999 (the "Section 106 Memorandum ").
3.5.6 A predator management agreement or similar agreement ( "Predator
Management Agreement") among Alameda, Developer and the U.S. Fish & Wildlife Service
(the "USFWS ") or other parties related to the effort to manage the predators of the California
Least Tern pursuant to the Biological Opinion issued by the Navy on March 22, 1999 (the
"USFwS Biological Opinion"), in furtherance of the Endangered Species Act.
3.5..7 Environmental review of the Project pursuant to CEQA, and if applicable,
NEPA, and certification by the lead agency .of the CEQA Documents (collectively,
"Certification"), with all relevant appeal periods with respect to each such Certification having
expired without the filing of a challenge or appeal, or if a challenge to or appeal of any
Certification is filed, with such challenge or-appeal resolved in a manner reasonably satisfactory Developer that shall Project � �
p permit construction of the Project substantially as described in the DDA
and the Entitlement Application filed with Alameda..
3.5.8 Approval by the City and, as applicable, the CIC, ARRA. or any other
relevant governmental agency, of the following zoning and entitlement applications and
agreements for the Project( "Approvals" ), with all relevant appeal periods with respect to each
such Approval having expired without the filing of a challenge or appeal, or if a challenge to or
appeal of any Approval is filed, with such challenge or appeal resolved in a mariner reasonably
satisfactory to Developer that shall permit construction of the Project substantially as described
in the DDA and the Entitlement Application filed with Alameda:
3.5.8.1 The entitlements and approvals described in Section 5.2.5(a)
through ;
3.5.8.2 DDA (as described in afsligna§ below);
3.5.8.3 APIP Community Improvement Plan amendment and Five -Year
Implementation Nan amendment, if required;
8
discretion;
•
discretion.
3.5.8.4 Zoning map amendment;
3.5.8.5 Development Plan and Design Review, at Developer's sole
3.5.8.6 - Parcel, Tentative or Vesting Tentative Maps, at Developer's sole
35.9 if applicable, revision of the USFWS Biological Opinion (the "USFWS
Biological Opinion Revision").
3,5.10 If applicable, a biological opinion issued by the National Oceanic &
Atmospheric Administration National Marine Fisheries Service (the "NMFS Biological
Opinion").
g
3.6 .DDA. The DDA will provide the mechanics and execution of the business terms,
will deli= the legal and administrative mechanisms to implement the Property Transfer(s) Y �, ) and
will establish the essential terms and framework of the Property Transfer(s), including s e • .
funding g p c�fy�ng
ding sources, Project phasing, the scope of development, terms of the Property Transfer (s),
schedule of erformanc p Y � )' a
p e, environmental clean -up responsibilities of, Developer and the Navy,
and specific obligations- of Developer and Alameda in carrying out redevelopment rnent o Project
5 p f the Protect
Site. The DDA shall be consistent with the terms of the CAA if the Parties enter into a
CAA,
and shall include the following key terms and provisions:
3.6.1 Planning and Financial Terms. The DDA shall incorporate the revisions
of the Development Plan, the Infrastructure Plan and the P
th Business Plan and shall include all
financial considerations for the Project, including those described in the Business Plan and
Project Pro Forma, as updated and refined per CEQA (and if applicable, NEPA) ect. ) review of the
3.6.2 Transaction Documents. All applicable terms of the completed
Transaction Documents, and provision for .completion and incorporation of applicable terms pp rms of
all Transaction Documents that are. to be completed after execution of the DDA and if
applicable, prior . to close of escrow pursuant to Section 2.2. l above. y
3.6.3 Environmental Rernediation Liability. The DDA will provide
for the
liability of the Parties, if any, in respect of any environmental remediation on, or related to
the
Project or Project Site. ,
3.6.4 Project Corppl eti o. Use of regulatory and financial al mechanisms to
achieve completion of the development of each hase of the Project '
F o� et �n a prompt and reasonable
manner, and remedies of Alameda for failure to complete. Such mechanisms shall include but
will not be limited to: '
3.6.4.1 Provisions for the development of certain uses, phases, or sub -
phases concurrently with other uses, phases, or sub- phases.
9
3.5.4.2 Provisions for the completion or partial completion of phases or
sub - phases prior to the commencement of development of sub-Oases.
other phases or sub - b
. p p
3.5.4.3 Provisions for the timing and manner in which Developer shall
provide drawings, elevations, models and other depictions of the design and construction details
- for development of the Project, and the timing and method for securing all required regulatory
approvals.
3.5.4.4 A schedule of performance to be attached as an exhibit to the
DDA, covering the Property Transfer(s) including leasing with respect to tidelands trust lands
and assignment of existing leases (such as Buildings 22 and 40), permitting and development
obligations and milestones. The DDA schedule of performance shall include obligations such as
the filing of applications. for tentative maps; the fling of final maps; the completion of, or
bonding for, infrastructure; and post - conveyance infrastructure and vertical development
obligations.
3.6.4.5 Extensions for performance due to force majeure or litigation
challenging entitlements, subject to periods to be negotiated in the DDA;
3.6.4.5 Appropriate financial assurances, which may include
performance and payment guarantees, to assure development of conveyed phases.
3.6.4.7 Terms providing for, and assuring the development of, all
affordable housing by phases pursuant to the requirements of Connmunity Redevelopment Law;
the Housing Element of the General Plan, and that certain Settlement Agreement effective. as of
March 20, 2001 by and among the City, CIC, ARRA, the Housing Authority, Catellus
Development Corporation, Renewed Hope Housing Advocates, and Arc Ecology. The.
affordable housing shall include, and Developer shall be entitled to a credit against its affordable
housing obligation for, those certain 157 units of multi- family attached units that may be
constructed by the Housing Authority of the City of Alameda (the "Housing Authority ") on the
Project Site on terms and conditions acceptable to Alameda, the Housing Authority and
Developer which may include the following: (a) that. the Housing Authority construct such units
in "partnership" with Developer or a nonprofit or for -- profit housing developer entity selected by
the Housing Authority; . (b) that the Housing Authority have an ownership interest in such
housing; (c) approval by the Housing Authority. of the development site(s) for such housing; (d
determination of the levels of affordability (it is the intention of the Parties that such
housing
shall first satisfy the ve ry low and low income affordability requirements o f the Prol ect ), (e)
the
site(s) be prepared for vertical development by Developer; and.(f) the Housing Authority may
receive a negotiated development fee.
3.6.4.8 Default and termination provisions (including reasonable cure
periods), for failure to acquire portions of the Property, to apply for entitlements, or to develo
the Project pursuant to the terms of the DDA and the P
. DDA schedule of performance; which shall
include rights of reverter in the CIC to conveyed land.
3.5.4.9 Requirements for the Developer to negotiate in good faith to
enter into a project labor .agreement for the construction trades.
10
3
l }
3.6.5 Perso ai P disposition ro ert . Provisions for the disposition of personal property
owned by Alameda located on, or related to, the Property.
3.6.6 Transfers. Provisions for Transfer (as defined in Section 9.2.4.5 below),
which shall include (i) a mechanism for p arties contributing debt or equity to the Project ect to
remove Developer from day -to -day management of the entity that executes the DDA (the "DDA
Development Entity") upon the occurrence of a default under the DDA Development Entity's
P Y
operating or partnership agreement, provided that Developer is concurrently replaced laced with a
substitute developer controlling day-to-day management that meets
specified criteria as a
"qualified developer ", including the approval of Alameda, which approval will not be
unreasonably withheld, conditioned or delayed, and (ii) the right of Developer to Transfer, on or
after the date on which the DDA is signed, p '
geed, Ownership Interests (as defined below) in Developer
so long as (A) SCC Acquisitions, LLC, a Delaware limited liability company
Ae�s , , • Y P Y
Acquisitions, LLC") or its wholly owned subsidiary shall continue to manage Developer on a
day - today basis and have contributed to Develo e (5%) P
p r at least five percent (Attie cash equity
contributed and to be contributed by all of the parties holding Ownership Interests in Developer
and (B) Al arneda has determined p that Developer has the financial ability, including debt and/or
equity financing, to carry out its obligations under the g
�' g he DDA, which determination by Alameda
shall not be unreasonably withheld, conditioned or delayed. 1
3.6.7 Le. ases. Provisions for addressing the leases described in Section 21
below. {
4
t
1
3.7 Certain overall Prince lei and Undertaken s. The documents and actions
contemplated in this Section 3 shall comply with the following - general principles and be
consistent with the following undertakings and which p .
g gs agreements, all of which shall be applicable to
the Project as .a whole.
3.7, l Dedication of Alameda Personnel- Res onse Time. A rovals.
3.7.1;1 Alameda and its constituent entities shall dedicate staff and other
resources which are adequate at all times to perform the responsibilities of Alameda under this
Agreement, and to the best of its ability; Alameda and its constituent entities shall . assure that
there is continuity of its staff throughout the life of the Project.
3.7.1.2 Subject to the Expedited Processing Agreement, Alameda shall
use Best Efforts to respond to each submission of Developer required hereunder within a
reasonable period from the date of submittal of the same. Alameda and its constituent entities
15
shall keep Developer apprised of the anticipated timing of Alameda's response.
3.7.2 Project Infrastructure. The planning, construction, financing and a ent
for on and off-site Project infrastructure are obligations P Ym
g ns of Developer and not Alameda, except to
the extent that public financing is provided by Alameda for the Project as described in Section 3.7.5 below.
n ect� S o n
3.7.3 Transportation. Developer shall, in the DDA, commit to (i) nn 1 eme .identified the
implementation ntation of transportation mitigation measures for the Project pursuant to the
CEQA Documents, (ii) im Iernentat'o `l A implementation of, or compliance with, conditions ofapproval pertaining
F.-
to transportation, and (iii) participation in transportation demand management and transportation
systems management programs.
31.4 .compiimpagitne t . Developer shall comply, or cause
compliance, with all CIC requirements applicable to development of the Project, including, but
not limited to: (i) the nondiscrimination and nonsegregation requirements of the APIP
Community Improvement Plan for the APIP Project Area, and (ii) any requirements for training
and employment opportunities to be extended to low - income residents of the Project Site,
including requirements pursuant to those certain Standards of Reasonableness for Homeless Uses
at Alameda Naval Air Station, as amended by that certain First Amendment to the Standards of
Reasonableness, dated October 1 999 (collectively, the "Standards of Reasonableness ").
3.7.5 . Tax Increment and Other Public Financing.
3.7.5.1 Tax Increment Financing. To the extent contemplated by the
Project Pro Forma and committed to in the DDA, aid subject to any conditions imposed thereon,
including demonstrated need, priority of repayment of CIC's and ARRA's existing debt and
operating expenses, priority of public benefit funding, the CIC shall make tax increment
generated by the Project available to obtain public financing to fund project costs eligible under
applicable law. The DDA or related documents, as applicable, shall determine the timing and
phasing of development and order of priority of use of any tax increment committed to the
Project by Alameda and such committed public funding shall be taken into account in the Project
Pro Forma and the DDA pro forma.
3.7.5.2 Assegsment.i i tricts. Subject to the provisions of Section 3.7.5.1
above, the DDA shall contain provisions which allow Alameda, subject to exercise of its sole
discretion, to make available additional public financing, including use of assessment districts
and formation of a municipal services district and/or community facilities district. Developer
shall cooperate in the formation of such assessment or taxing district.
3,7.5.3 Financial Protections. All public financing provided by Alameda
shall be conditioned upon the inclusion of customary adequate protections for the CIC of its
financial position and shall require rights of profit participation after Developer receives the IRR
negotiated as part of the DDA as described in Section 3.2.4,1 above.
3.7.6 Alameda Power & Telecom. Developer understands that Alameda Power
& Telecom ( "APT ") desires to market and provide telecommunications and other services to its
telecommunication customers within the Project and is willing to negotiate in good faith with
APT with respect to providing such services to the Project.
3.73 DDA and EDC MOA. The DDA, shall comport with the EDC MOA as it
may be amended.
3.7.8 Conditional Commitment to Terms, Terms not Exclusive. if the CIC
and/or ARRA choose to approve and execute a DDA (and, if applicable, a CAA) with Developer
for the Project Site, and Developer elects to execute the DDA (and, if applicable, a CAA), the
Parties agree that such DDA (and, if applicable, a CAA) shall contain, implement, and shall be
internally consistent with, the provisions referenced, described, or set forth in this Section 3,
12
subject to mutual written modification by the Parties. The provisions above are not intended as
an exclusive list of the contents of a DDA (and, if applicable, a CAA), which is anticipated to be
longer, more detailed, elaborated on, and go beyond, the above treatment of such issues.
3.8 Delivery of Documents and Reports.
3.8.1 Developer Documents. Developer shall provide to Alameda copies of all
final reports, studies, analyses, cost estimates, material correspondence, and similar documents
prepared or commissioned by Developer with respect to this Agreement, the Project and the
Project Site, promptly upon their completion and following internal review by Developer, but
excluding confidential or proprietary information which Alameda may not keep confidential
pursuant to Section 10 below,
3.8.2 Alameda Documents. To the extent Alameda has not provided the
following to Developer during the Due Diligence Period and to the extent the following are in
Alameda's possession as of the Effective Date, promptly following the Effective Date, Alameda
shall provide to Developer copies of all final reports, studies, analyses, cost estimates, material
correspondence, and similar documents prepared or commissioned by Alameda with respect to
this Agreement, the Project, the APIP Project (including tax increment financing analysis) and
the Project Site. Thereafter, Alameda shall provide to.Developer copies of all reports, studies, - .
analyses, cost estimates, material correspondence, and similar documents prepared or
commissioned by Alameda with respect to this Agreement, the Project, the APIP Project
(including tax increment financing analysis) and the Project Site, promptly upon their completion
and following internal review by Alameda and, if applicable, acceptance by the applicable
governing bodies of Alameda, but excluding confidential privileged documents. Nothing in this
Section 3.8.2 obligates Alameda to undertake any studies or analyses other than as required by
CEQA.
3.8.3 DraftiDocumexits. Notwithstanding anything to the contrary in Sections
3.8.1 and 3.8.2 above, the Parties acknowledge that it may be necessary to share with each other
drafts reports, studies, analyses, cost estimates, ,material correspondence, and similar documents
prepared or commissioned by Developer or Alameda with respect to this Agreement, the Project
and the Project Site, provided such drafts are either not confidential or proprietary information of
Developer which Alameda may not keep confidential .pursuant to Section 10 below, or are
confidential privileged documents of Alameda.
Section 4. Schedule and Milestones.
4..1 Schedules of Performance. The Non - Mandatory Milestone Schedule of
Performance attached hereto as Exhibit B -2 sets forth the Non -- Mandatory Milestones (as defined
below) and initial estimated time periods for completion thereof. The Schedule of Performance
(Mandatory Milestones) attached hereto as Exhibit B -1 (the "Mandatory Milestone Schedule of
Performance ") sets. forth the Mandatory Milestones (as defined in Section 4.2 below) and dates
for achieving the Mandatory Milestones: The Non - Mandatory Milestone Schedule of
Performance and the Mandatory Milestone Schedule of Performance are sometimes referred to
herein collectively as the "Schedules of Performance ". The Schedules of Performance may be
13
amended by the Parties from time to time to reflect, among other things, extensions pursuant to
Sections- 4.2.1 or 5 below.
4.2 Mandatory Milestones. The mandatory milestones (the "Mandatory
Milestones ") shall be: (i) the submission of (a) the Project Master Schedule as described in
Section 3.2.5.1, above, (b) the Development Concept as described in Section 3.2.1, above, (c) the
Infrastructure Plan as described in Section 3.2.2 above, (d) the Business Plan as described in
Section 3.2.3 above, and (e) the Entitlement Application as described in Section 3.2.6, above; and
(ii) mutual agreement of the Parties on the Project Pro Forma as described in Section 3.2.4
above.
4.2.1 Mandatory Milestone Extension. The date for performance of any -
Mandatory Milestone may be extended by the Deputy Executive Director of the ARRA if there
is a reasonable basis for such extension and so long as such extension does not exceed the
Exclusive Negotiation Period, as the Exclusive Negotiation Period may be extended from time to
time pursuant to. Section 2.2 above.
4.2.2 Waiver of Project Pro Forma Mandatory Milestone. The failure of
Developer and Alameda to agree upon the Project Pro Forma by the date for performance set
forth therefor on the Mandatory Milestone Schedule of Performance shall be deemed a waiver by
Alameda of the date for performance of that Mandatory Milestone.
4.3 Non - Mandatory Milestones. The non - mandatory milestones ( "Non- Mandatory
Milestones ") shall be the completion of negotiations of the Transaction Documents listed in the
Non - Mandatory Milestone Schedule, of Performance attached hereto as Exhibit B -2. The dates
for performance listed for the Non-Mandatory Milestones are good faith estimates by the Parties
of the time required to complete the Transaction Documents. As used herein, completion of
Transaction Documents means finalized and ready for approval by Alameda (by its Board of
Directors, Board of Commissioners and City Council), or delivered or fully - executed, as
applicable, with respect to any Transaction Document that does not require such approval by
Alameda. The failure to complete such Non - Mandatory Milestones by the respective dates listed
on the Non- Mandatory Milestone Schedule of Performance for any reason whatsoever shall not
in and of itself constitute a default by either Party hereunder.
Section 5. Litigation Force Majeure. The Exclusive Negotiation Period, and the dates for
performance of Mandatory Milestones, shall be extended for the period of any Litigation Force
Majeure (as defined below); provided that any extension as a consequence of Litigation Force
Majeure shall operate to extend the date for achievement of any Mandatory Milestone only to the
extent that the Mandatory Milestone is affected by the event or events constituting the Litigation
Force Majeure. The Parties may elect to amend this Agreement to reflect extensions pursuant to
this Section 5, and such amendments shall reflect which Mandatory Milestones and Transaction
Documents (and related Non - Mandatory Milestones) are so affected.
5.1 "Litigation Force Majeure" means any action, proceeding, application or
request before any court, tribunal, or other judicial, adjudicative or legislative decision - making
body, including any administrative appeal, that is brought by a third party and seeks to challenge:
(a) the validity of any action taken by Alameda with respect to a Transaction Document(s),
14
including Alameda's selection of Developer as the e
develo r •of th Project rject Site the approval b
� Site, pp by
Alameda of any of the proposed Transaction Documents, the performance of any action required
or permitted to be performed by Alameda hereunder 9
p y h xeunder or under the proposed Transaction
Documents, or any findings upon which any of the foregoing are predicated; or the validity of
is predicated; (b) tY
any other approval that is required for the conveyance, management or redevelopment of the
Project Site as contemplated ated here � � p •
J p by and would prevent the Parties from executing the DDA. with
conditions, as .provided above, or prevent the DDA from'becoming effective, or require a
material modification of the DDA, q
,the Plans, the Entitlement Application or the Project.
Section 6. Alameda Cost Recovery /Reimbursement.
6.1 Initial Payments. 'Alameda acknowledges receipt of One Hundred Thousand
Dollars ($100,000) paid by SCC Acquisitions (the rights to which have been assigned b y SCC
Acquisitions to Developer) to ARRA as required by the Developer MOA. Within five (5)
business days after approval of, and execution by, Alameda and Developer of this Agreement .
(the "Approval Date "), Developer shall pay to Alameda an additional Nine Hundred Thousand
Dollars ($900,000), for a total One Million Dollars ($I,000,000)sum (the "Initial Payment")
y �
that shall b e
placed in an interest bearing account and the Initial Payment (without interest) shall
be applied to the land purchase price if the Project Site is conveyed to Developer.
6.2 Developer Reimbursement of Alameda Pre .Development Costs. Developer shall
reimburse Alameda for its re „develo ment costs, P
p P s, which shall consist of third-party consultant
and legal. costs and expenses and Alameda staff time, as such staff time shall be reflected in the
Annual. Budget (as defined below), related to the negotiation and preparation of this Agreement
and the Transaction Docinzents the "Pre-Development opnaen t 'Fork "), inclined from and -after - the
Effective. Date (the "Pre - Development Costs "), subject to the provisions of this Section 6. With,
the exception of the Assistant City Manager, Base Reuse Division Manager, and Manager,
g �
Planning, ' whi ch shall be billed at the percentage of such position's salary and' benefits shown on
Exhibit C, all employees and consultants of Alameda shall bill on an hourly basis.
6.3 Initial Deposit: Annual Budget:
Negotiating Costs Account _Led er .
An estimate
of Alameda's s annual projected- Pre - Development
Costs for the period commencing with the
Effective Date and terminating twelve (12)months later is attached as Exhibit C to this
Agreement (the initial "Annual Budget "). The Annual Budget shall be evaluated and
reasonably adjusted each year. Alameda shall use good faith efforts not to exceed the Annual
Budget agreed to by the Parties from time to time. Within ten (l0) days after the Effective Date
Developer shall submit Y Date,
l? t a cash deposit to Alameda in an amount equal to twenty-five percent
(25 %) of the Annual Budget (the "Initial Deposit"), The Initial Deposit shall be sequestered in
a separate account (the "Ne otiatin q "Negotiating g Cost s Account"). Interest earned on funds in the
Negotiating Costs Account shall accrue to that account. All invoices and charges es for Pre-
Development Costs made against that account during the first ninety (90) days of negotiation
shall be recorded on a separate ledger (the "Negotiating Costs Account Alamed If , Led er" '
Ledger"), as
actual Pre - Development Costs for such ninety (90) day period exceed the Initial Deposit,
i
Alameda shall fund.such costs from its own sources, but shall record a notice of deficit in the
Negotiating Costs Account Ledger.
15
6.3.4 mechanism for Fu
in
Ontoin Al
-!3
•
t�
eeo e
63.1 .1 On the ninetieth (90th) day following the Approval Date,
Developer shall deposit additional funds into the Negotiating Costs Account equal to twenty -five
percent (25 %) of the Annual Budget plus any deficit accrued in the Negotiating Costs Account
Ledger (each a "Quarterly Deposit"). Alameda and Developer shall continue this process for
each ninety (90) day negotiating period until this Agreement is terminated; provided, however,
that in any twelve (12) month period, Developer shall not be responsible for reimbursement of
Pre - Development Costs in excess of the Annual Budget as attached hereto or as revised as
provided below.
5.3.1;2 If a deficit or a surplus of greater than ten percent (10 %) •of the
pro -rated Annual Budget has accrued in the Negotiating Costs Account Ledger for three (3)
successive quarters, or for three (3) quarters in any calendar year, Developer and Alameda shall
meet and confer in good faith to assess the sufficiency of the Annual Budget amount, and may
upon the written consent of each,.adjust the Annual Budget accordingly, provided, however, if
Alameda determines that an increase in the Annual Budget is necessary and Developer does not
agree, then Alameda shall have- no obligation to perform, or cause to be performed, any Pre -
Development Work for which such increased amount is necessary, pending resolution of the
dispute. ' Thereafter, Quarterly Deposits shall consist of twenty -five percent (25 %) of the Annual
Budget as revised, plus any deficit accrued in the Negotiating Costs Account Ledger.
6.3.1.3. Upon termination of this Agreement any surplus funds in the
• Negotiating Costs Account remaining after (a) the completion of the ninety (90) day negotiating
period during which this Agreement was terminated, and (b) payment. of Prey- Development Costs
incurred by Alameda during such ninety (90) day negotiating period, shall be returned to
Developer. If there i s a deficit noted in the Negotiating Costs Account Ledger at the conclusion
of the ninety (90) day negotiating period during which this Agreement terminated, then such
. amount shall be due and payable by Developer. Any extension of this Agreement as provided
- herein shall extend the cost recovery procedures set forth in this Section 6.3.1. This Section
6 3 shall survive the expiration or termination of this Agreement.
6.3.1.4 Review of Negotiating Costs Account Ledger. From time to
time, upon reasonable prior notice to Alameda, - Developer may reviewthe Negotiating Costs
Account Ledger to determine whether invoices and charges to the Negotiating. Costs Account
reflect actual Pre - Development Costs. If Developer disputes any invoice or charge to the •
Negotiating Costs Account, Developer shall notify Alameda, and if the Parties so agree that an
invoice or charge has been inappropriately charged against the account, Alameda shall deduct the
amount of the inappropriate invoice(s) or charge(s) from the sum it is entitled to draw from the
- ,Negotiating Costs Account for the next ninety (90) day negotiating period, or if after the
termination of this Agreement, a disputed invoice or charge is identified and the Parties agree
that such invoice or charge was inappropriately charged, Alameda shall promptly pay such
amount of Developer.
l6
Section 7. Even'
vents of Pefault.
7.1 D fault of Develo er. Upon the occurrence of any of the events described in this
,Section 7.1, and, if applicable; the failure of Developer to cure such event within the respective
cure period (as expressly provided in this 4ctiprtl, f. ), there shall be.a "Developer Event of
Default"., provided if a cure p
., p , u re period is expressly set forth in this Section 7. i_, Alameda shall have
first given written notice of the default (the "Alameda Default Notice" ) specifying in reasonable
detail the basis for the determinations of the default. If no cure period is expressly rovided in
this Section 7 (e.g.,. p p y P + .1, Section 7.1.4), Alameda may provide a written notice of default with a
termination notice pursuant to Section 8.1 below.
7.1.1 Failure of 1 evelo . er to a ot'ate in Good Fax . in the event that
Alameda determines in its reasonable discretion that Developer has failed to negotiate diligently
g gently
and in,good faith as provided in Section 1.1 above, Alameda shall have the right to give an
Alameda Default Notice to Developer in accordance with Section 7,1, above. Following the
receipt of such notice, Developer shall h.ave default
p e thirty �(30� business days to cure the default
identified in the Alameda Default Notice by re-commencing to negotiate in good faith or
by
notifying Alameda that it does not consider its action or inaction a failure to negotiate ate di li entl
and in good faith. If Developer fails to within . - g diligently
op is o cure the default within such cure period,. Alameda shall
have the right to terminate this Agreement by written notice to provided Developer; rovided that
P
Developer shall have the right to dispute such termination.
• 7.1.2 Failure of Develo , er to M - R ' ueste De i osits into the Ne otiat�n
Costs Account. In the event Developer fails to make the Initial Deposit .or any uarterl
� Y Deposit
p
pursuant to the procedure set forth in Section .6 of this Agreement, Alameda shall have the right
t to give written n o tice thereof Developer specifying the amount of t he deposit
which wis not
made. Following. the receipt of such notice, Developer shall have. fifteen (15) business days to
make the required deposit and Alameda shall have the right to suspend all Pre-Development
ent work being performed b third parties pa i d by Alameda during such cure period. IfDeveloper
er
has not then made the required deposit, Alameda shall have the right to terminate this Agreement
by written notice to Developer.
7.1.3 Breach b Dev to er of Section 92 of his A eement. If Developer
makes any Transfer (as defined in Section 9.2.4.5 below) in violation of `
� �taon 9,2 below,
Alameda shall have the light to give an Alameda Default Notice in accordance with Section 7.1
above to Developer. If Developer fails toe r a the default within forty-five hoe (45) business days of having received such notice,-Alameda
shall have the right to terminate this-Agreement by written
notice to .Developer.
7.1.4 Vol= Bankru tc or Insolvenc . In the event that Developer
becomes insolvent and/or files a voluntary petition in bankruptcy, . Alamede shall have the right -
to terminate this Agreement by written notice to Developer.
7.1.5 involuntary Bankiitex. in the event that an involuntary petition in
bankruptcy has been filed against Developer (an "Involuntary Bankruptcy"), Developer shall
l
promptly notify Alameda and shall have one hundred twenty (120) days from the filing of such
xnti�olu�ltary Bankruptcy to cause the same g
me to be dismissed. If Developer fails to cause dismissal
17
within such one hundred twenty ( 120) day period,- Alameda shall have the right to terminate this
Agreement by written notice to Developer,
7.1.6lureo achieve Mandator�r Milestone. . Subject to Sections 4.2.1 and
422 above, in the event Developer fails to achieve a Mandatory Milestone, b y the th applicable
I?p
date set forth in the Mandatory Milestone Schedule of Performance, as such date may be
extended pursuant to Secti n 4.2.1 above, Alameda shall have the•right to give an Alameda
Default Notice in accordance with ,Section 7.1, above to. Developer. If Developer fails to cure the
default within forty -five (45) business days of having received such notice, Alameda shall have
the right to terminate this Agreement by written notice to Developer.
. 7.2 Default of Alameda. In the event that Developer deteranines in its reasonable
discretion that Alameda has failed to negotiate diligently and in good faith as provided in Section
1. 1 above, Developer shall have the right to give written notice (the "Developer Default
Notice ") thereof to Alameda specifying in reasonable detail the grounds for such failure.
Following the receipt of such notice, Alameda shall have thirty (30) business days to cure the
default identified in. the Developer Default Notice by recommencing to negotiate in good faith
or by notifying Developer that it does not consider its action or inaction a failure to negotiate
diligently and in good faith. If Alameda fails to cure the default- within the applicable cure
period On "Alameda Event of Default"), Developer shall have the right to terminate this
Agreement by written notice to Alameda, provided that Alameda shall have the right to dispute.
. p
such termination.
7.3 Failure to Agrolipon Transaction Documents. Notwithstanding anything to the
contrary in this Agreement, provided that each Party has complied with the provisions of this
Agreement, the failure to reach agreement upon any of the Transaction Documents or complete
any of the identified tasks set forth in Section 3 above shall not be deemed either an Alameda
Event of Default or Developer Event of Default. If the Term of this Agreement expires prior to
� p
` F
reaching agreement pursuant to this Section 7.3, Developer shall not be entitled to the return of
the Initial Payment or any interest accrued thereon. •
7.4 Remedies. In any action at law or equity or other legal or administrative
proceeding to remedy a Developer Event -of Default or an Alameda Event of Default or
otherwise enforce. this Agreement, or that otherwise may arise out of this Agreement neither
Alameda nor Developer shall be entitled to damages or monetary relief other than as set forth in
this Section 7.4. Permitted remedies shall include (i) mandatory or injunctive relief, (ii) writ of
mandate, (iii) termination of this Agreement, or (iv) a contract Claim (as defined Section 15.5
below) to recover money due to Alameda. or Developer as a payment of Pre- Development Costs
or reimbursement of excess Pre - Development Cost deposits under Section 6 of this Agreement;
provided,
p d, however, neither Alameda nor Developer shall be liable, regardless of.whether the
Claim is based in contract or tort, for any special, indirect or consequential damages.
Section 8. Termination.
8.1 Termination by Notice. Upon the occurrence of any of the circumstances
contained in this Section 8.1, this Agreement may be terminated by the applicable Party by
18
written notice to the other. if this Agreement is terminated pursuant to this Section 8.1
Developer shall not be entitled to a refund of the initial Payment or any interest accrued thereon,
8.1 .1 A Developer Event of Default pursuant to Section 7.1 above, provided that
an Alameda Default Notice has been sent and any period of a right to cure has p assed without
such cure occurring.
81.2 Developer, in its sole discretion, may terminate this Agreement at any upon provision of fifteen (15) business da s Y . y prior written notice to Alameda in the event
that during the course of its investigations and evaluation of the Project Site and the Project,
Developer determines in .good faith . that the Project is not commercially feasible or capable of
being financed in a commercially easonable p
y manner.
8.1.3 Developer elects, in writing, not to commence reimbursement of Pre-
Development Costs as provided in Section 6.3 above.
8.2 Termination by Alameda Default. In the event of an Alameda Event. of Default
pursuant to Section 7.2 'above, Developer may terminate this Agreement by delivery of written
notice to Alameda, provided that a Developer Default Notice has been sent and an period of a
right to cure has passed without such cure occurring. ccurring. if this Agreement is terminated P ed pursuant to
this Section 8.2, Developer shall be entitled to a refund of the Initial Payment, together with
interest accrued thereon. Such refund obligation g any
shall survive the expiration or termination of
this is Agreement.
1
1
9,1 Representations Warra- nties.
9.1.1 Duly Formed and Validly Existing. Developer represents and warrants
that SCC Alameda Point LLC is a Delaware limited liability company duly formed and validly
ly
existing under the laws of the State of Delaware and is admitted and in standing in-good
5 and�ng {as a
foreign limited liability company) in the State of California.
9.1.2 Developer Authority. Developer represents and warrants that the
person(s) executing this Agreement on behalf of Developer authority has full right, power and authority to
execute this Agreement and to bind Developer hereunder.
.$.3 Termination by Expiration. This Agreement will automatically terminate upon
expiration of the Exclusive Negotiation Period as it may p
g m }� be�extended pursuant to Section 2.2-
above. If this Agreement terminates pursuant to this Section 8.3, then, absent an Alameda Event
of Default, Developer shall not be entitled to a refund of the.Initial Payment o
y or any interest
accrued thereon.
8.4 Negotiating.. Costs Account Refund. If this Agreement terminates ursuant to this
e r any funds remaining in the Negotiating 8, Alameda shall return to Developer p
p gotiating Costs
Account after all applicable payments have been made from the Negotiating Costs Account for
fr
the period to and including the termination date. This Section 8.4 shall survive the termination
of this Agreement.
Section 9. a re a tations and wananties. Transfers.
19
9.13 Alameda authority. Alameda represents and warrants that the persons
executing this Agreement on behalf of Alameda have the full right, power and authority to
execute this Agreement and to bind Alameda hereunder.
9.2 Transfer of this A regimen .
9.2.1 Purpose of.Res o on onir$nsfer. The qualifications and identity of
Developer are of particular concern to Alameda,. in view of the importance of the entitlement and
development of the Project and the Project Site to Alameda. It is because of the qualifications
and identity of Developer that Alameda is entering into this Agreement with Developer.
Accordingly, a Transfer (as defined below) of this Agreement is- permitted only as provided in
Sections 9.2.2 and 9.2,3 below.
9.2.2 Trans 'er obiJ it cI Alamo .�y� o Except as permitted in Section
9.2 .3 below, Developer shall not make or create any Transfer of its interest in this Agreement or
any part thereof, nor shall any Person having an Ownership Interest in Developer Transfer any
such Ownership Interest without the prior written consent of Alameda, which consent may be
given in the sole discretion of Alameda. Any consent or approval of Alameda pursuant to this
Section 9.2 shall be as authorized by its Board of Directors, Board of Commissioners and City
Council. In the absence of express written approval by Alameda, no Transfer shall relieve
Developer or any other party from any obligations pursuant to this Agreement.
9.2.3 Permitted Transfer.
9.2.3.1 Developer shall have the right to Transfer its interest in this
Agreement without Alameda's consent to any Controlled Affiliate (as defined below) so long.as
SCC Acquisitions, LLC shall be Controlled (as defined below) by Bruce Elieff andlor Steve
Elieff.
9.2.3.2 Ownership Interests in Developer may be Transferred without
Alameda's consent provided that after any such.Transfer (i) SCC Acquisitions, LLC shall be
Controlled (as defined below) by Bruce Elieff and/or Steve Elieff and (ii) SCC Acquisitions,
LLC or its wholly owned subsidiary (a) shall have contributed at least fifteen percent (15 %) of
the cash equity contributed by all oldie owners of Developer, (b) is responsible for the day -to-
day management of Developer, and (c) during the Exclusive Negotiation Period there exists no
right of the. other parties holding Ownership Interests of Developer or any other party to remove
SCC Acquisitions, LLC or its wholly owned subsidiary from the day -to -day management of
Developer without the prior written consent of Alameda, which consent will not be unreasonably
withheld (and the lack of a replacement acceptable to Alameda shall be deemed reasonable
grounds).
9.2.4 Definitions. For purposes of this Agreement, the capitalized terms defined
in this Section 9.2.E shall have the meanings ascribed to there below:
9.2.4.1 "Control" or "Controlled by" or "Controlling" or any
derivative thereof, when used with respect to any specified Person, means the possession,
directly or indirectly, of fifty -one percent (51%) or more of the Ownership Interests of such
Person. .
20
9.2.4.2 "Controlled Affiliate" shall mean a Person in which Developer
has contributed at least fifteen percent (15 %) of the cash equity contributed b . all of the owners
� y
of such Person; provided that (a) Developer is responsible for the day- to-day management of
� y mana �
such Person, and (b) during the Exclusive Negotiation Period there exists no right of the other
parties holding Ownership Interests of such Person or any other party to remove Developer from
the day -to -day management of such Person without the prior written consent of Alameda, which
consent will not be unreasonably withheld, conditioned or delayed (and the lack of a replacement
acceptable to Alameda shall be deemed reasonable grounds).
9.2.4.3 "Ownership Interest" shall mean the possession, directly or
indirectly, of voting securities or partnership, general partnership, membership or other
ownership interests (based upon value or vote) of a Person.
9..2.4.4 "Person" shall mean any individual, partnership, corporation
(including, but not limited to, any business trust), limited liability company, joint stock company,
P y,
trust, unincorporated association, joint venture, or any other entity or association.
9.2.4.5 "Transfer" shall mean any voluntary or involuntary transfer,
sale, assignment, pledge, hypothecation or the like to any Person, including any transfer, sale,
assignment, pledge or hypothecation of Ownership Interests in Developer.
9.2.5 Compliance. Alameda shall have the right, but not the obligation, from
time to time, by written notice to Developer, to require that Developer demonstrate compliance
with the requirements of this Section 9.2; provided, however, Alameda may not require such
demonstration more than once every six (6) months. Developer shall provide to Alameda within
five (5) business days of receipt of such notice, all documentation reasonably necessary in order
to enable Alameda to determine whether Developer is in compliance with the requirements of
this Section 9.2.
9.3 Individuals on:Developrnent Team. Developer shall endeavor to retain the key
individuals assigned by it to perform the responsibilities identified herein and in the event of
changes in such personnel, individuals of substantially equivalent seniority, experience and
qualifications shall be assigned. Developer shall provide written notice to Alameda of changes
in its key personnel and their respective responsibilities and shall furnish to Alameda information
on the seniority, experience and qualifications of an y additional or substituted individuals.
Section 1.0. Confidentiality of Information and Negotiations. Alameda and Developer enter this
Agreement with the understanding that Developer. may provide certain information of a
confidential nature during the negotiations of the Transaction Documents and other tasks
identified in Section 3 above. Such information may be necessary for Alameda to verify
information that is relevant to the negotiations of the Transaction Documentation. Alameda and_
Developer agree that they will keep confidential and not disclose any information submitted by
Developer in the course of the negotiations or preliminary drafts of Transaction Documents or
other negotiation preliminary draft documents, including financial analyses, that are identified as
privileged or confidential under the • law unless ordered to do so by a final order of court.
Developer agrees to bear all costs of any litigation that is filed to determine the applicabili ty of
public records law to information and documents submitted by Developer in furtherance of
21
negotiating a DDA or any other agreements contemplated in the Agreement. Notwithstanding
the provisions of this ection 10, in no event shall any party be required to disclose to any other
party information which is protected by the attorney - client privilege.
Section 11. Representatives of the Pa xes,
11,1 Alameda Representative. For the purpose of administering the provisions of this
Agreement, Alameda shall be represented by the Deputy Executive Director of the ARRA, or
such other Alameda staff as shall be designated from time to time to act for a particular matter in
writing.
11.2 Develo er Re resentative. For the purpose of administering the provisions of this
-Agreement, Developer shall be represented by Bill Myers, or such other employees of Deieloper
as are designated from time to time to act for a particular matter in .writing by Developer. In
addition, Developer shall assign personnel to assist in the negotiations and the completion of the
tasks set forth in Section 3 above.
Section 12. Limitations of this Agreement.
12.1 By executing this Agreement, Alameda is not committing itself to, or agreeing to
undertake any (i) exchange or transfer of land, (ii) disposition of land to Developer, or (iii)
other acts or activities requiring the subsequent independent exercise of discretion by ARRA, the
CIO, the City or any agency or department thereof. This Agreement does not constitute a
disposition or exchange of property by ARRA, the City or the CIC. Execution of this Agreement
by Alameda is merely an agreement to enter into a period of exclusive negotiations according to
the terms thereof, reserving final discretion and approval by the Board of Directors of ARRA,
Board of Commissioners of the CIC and the City Council as to. a DDA or any other agreement(s)
contemplated in this Agreement and all proceedings and decisions in connection therewith.
12.2 If a DDS. has not been executed by the Parties by the expiration of the Exclusive
Negotiation Period (as extended pursuant to Section 2,2 above) or if this Agreement has
otherwise been terminated in accordance with the provisions set forth herein, neither Party shall
have any further rights or obligations under this Agreement, except with respect to any
obligation which expressly survives the termination or expiration of this Agreement as set forth
in Sections 6, 8 and 18 of this Agreement.
Section 13. Approval of DDA. If negotiations culminate in a DDA between Alameda and
Developer following CBQA review of the Project, such DDA shall become effective only after
and u(ifapplicable), Y a
pon the approval by the Board of Directors of ARRA Board of
Commissioners of the CIC and the City Council and execution by Alameda pursuant to direction
of the Board of Directors of ARRA (if applicable), Board of Commissioners of the CIC and the
City Council.
Section 14. Alameda Right to Obtain Information and to Consult with Others. Alameda
reserves the right to obtain information concerning the transaction described by this Agreement
from any person, entity or group; provided, however, that excepting consultants retained by
Alameda to assist in the negotiation process contemplated in this Agreement, Alameda shall not
22
reveal to any such persons or groups confidential or proprietary information or other information
kept confidential as provided in Section 10 of this Agreement.
Section 15, Nonliabilit of ARRA the CIC and the Cit . Subject to Alameda's compliance with
the provisions of this Agreement:
15.1. Develo er warrants it Has No Cla ms A ainst the ARRA the CIC or the City.
Developer agrees that it does not now have and shall not at any time, whether before or after its
execution of this Agreement, have or make. any Claim or Claims against Alameda, individually
y
or collectively, or against ARRA, the CIC or City, or the ARRA Property, CIC Property, or City
Property (all as hereinafter defined), directly or indirectly, by reason of any or all of the causes
set forth in Section 15.3 below.
15.2 Nonliability of the ARRRA, the CIC and the City of Alameda. Developer agrees
that Alameda shall not have any liability whatsoever of any kind or character, directly or
indirectly, by reason of any or all of the causes set forth in Section 15.3 below.
15.3 Causes to which Nonliability Apply. The causes to which the provisions of
Sections 15.1 and 15.2 above apply are as follows:
15.3.1 Any aspect of the RFQ, including any information or material set forth
therein or referred to therein;
15.3.2 Any aspect of the Developer MOA, including any information or material
set forth therein or referred to therein;
15.13 Any modification, or suspension of the RFQ or Developer MOA, or
informalities or defects therein;
15.3.4 Any defects in the selection procedure identifying Developer conducted
by Alameda or any act or omission of Alameda with respect.thereto, or any release or
dissemination of any information submitted by Developer to Alameda prior to the Effective
Date;
15.3:5 The expiration of the Exclusive Negotiation Period, whether initial or an
extension thereof; or
15.3.5 The exercise of any ARRA, CIC or City discretion; decision and judgment
permitted by this Agreement.
. 15.4 Waiver of Mims. Developer expressly. and absolutely waives any and all Claim Claims against Y Y �m
ems against the ARRA, the CIC, the City of Alameda, ARRA Property, CIC Property or
City Property, directly or.indirectly, arising out of, or in any way connected with, any or all of
Y Y
the platters set forth in Section 153 above.
15.5 Definitions. For purposes of this Agreement, the words defined in this Section
15.5 shall have the meanings ascribed to them herein:
23
15.5.1 "ARRA ", "CIC ", and "City" includes their respective members, officers,
employees, agents, consultants, successors,- and assigns.
1 5.5.2 "ARRA Property ", "CIC Property" and `City Property {" shall include
the Project Site and all other property of ARRA, the CIC and the City, real, personal or of any
other kind or character.
15.5.3 "Best Efforts" shall mean the commercially reasonable expenditure of
time and effort on the part of the representatives of the Parties to accomplish a specified task, but
shall not mean the expenditure of funds by ARRA, the City or the CIC. which are not recoverable
under the cost recovery mechanism set forth in Section 6 above, nor shall "Best Efforts" require
either Party to incur liabilities unless such act is otherwise explicitly required by. this Agreement
or by State of California or federal law.
15.5.4 "Claim" or "Claims" shall mean any and all protests, rights, remedies,
interests, objections, claims, demands, actions or causes of action of every kind or character
whatsoever, in law or in equity, for money or otherwise, including but no limited to Claims for
injury, loss, expense or damage, Claims to property, real or personal, or rights or interest therein,
and Claims to contract or development rights or development interests of any kind or character,
in any ARRA Property, CIC Property and/or City Property, or Claims that might be asserted
against or cloud title to ARRA Property, CIC Property or City Property.
Section 16. Hold Harmless and Indemnity; Limitation on Liability.
16.1 Indemnity. Developer shall defend, hold harmless and indemnify ARRA, the CIC
and the City from and against any and all Claims made by any third party directly or indirectly
arising out of Developer's Response to the RFQ and/or the Developer MCA and/or this •
Agreement; provided, however, such obligation shall not apply to any Claim resulting. solely
from an act or omission of ARRA, the CIC and/or the City.
16.2 Limitation on Liability. No member, official or employee of Alameda shall be
personally liable t� Developer in the event of any default or breach by Alameda, or for any
amount which may become due to Developer, or on any obligations under the terms of this
Agreement. No member, officer or employee of Developer or its affiliates shall be personally
liable to Alameda in the event of .any default or breach by Developer, or for any amount which
may become due to Alameda, or on any obligations under the terms of this Agreement.
Section 17. Notices. Formal notices, demands and communications between the Parties shall be
sufficiently given if, and shall not be deemed given unless, dispatched by certified mail, postage
prepaid, return receipt requested, or sent by an express delivery or overnight courier service that
maintains written delivery records, to the office of the Parties shown as follows, or such other
address as the Parties may designate in writing from time to time:
24
If to Alameda:
AAA: Alameda Reuse and Redevelopment Authority
950 West Mali Square
Alameda, California 94501
Attention: Alameda Point Project Manager
CIC: Community Improvement Commission of the City of Alameda
950 West Mali Square
Alameda, California 94501
Attention: Development Services Director
City: City of Alameda
2263 Santa Clara Avenue
Alameda, California 94501
Attention: City Manager
With copies to City of Alameda
2263 Santa Clara Avenue, Room 280
Alameda, California 94501
Attention: City Attorney
If to Developer: . SCC Alameda Point LLC
c/o SunCal Companies
. 1430 Blue Oaks Boulevard, Suite 200
Roseville, California 95747
Attention: Bill Myers
SCC Alameda Point LLC
c/o SunCal Companies
2392 Morse Ave
Irvine, California 92614
Attention: Marc Magstadt
SCC Alameda Point LLC
c/o SunCal Companies
2392 Morse Ave
Irvine, California 92614
Attention: Bruce Cook
Such written notices, demands, and communications shall be effective on the date shown on the
written delivery record as the date delivered or the date on which delivery was refused.
Notwithstanding the foregoing, Alameda may respond to Developer requests for information by
delivering requested information to only the address of the requesting representative of
Developer.
25
Section 18. Entry On Property. During the Term of this Agreement, ARRA shall provide
Developer with reasonable access to and entry upon the Project Site, during normal business
hours and in accordance with the terms and conditions of this Section 18, for the purposes of
conducting such non - intrusive inspections and studies as Developer may elect of the physical
condition of the Project Site. Such access, inspections and studies shall be permitted and
conducted on the following terms and conditions:
18.1 Developer shall pay for all inspections and studies ordered by Developer.
18.2. Developer shall maintain, and ensure that its contractors maintain, the following
insurance:
18.2.1 Developer shall maintain commercial general liability and property
damage insurance, contractual liability and worker's compensation insurance as follows:
18.2.1,1 Broad form commercial general liability insurance, in an amount
not less than Five Million Dollars ($5,000,000), combined single limit.
18.2.1.2 Workers' compensation, statutory coverage as required by the
State of California, and employer's liability in an amount not less than One Million Dollars
($1,000,000).
18.2.1.3 Automobile liability insurance for owned, hired or non -owned
vehicles, in an amount not less than One Million Dollars ($1,000,000), combined single limit. i
1.82.2 All insurance provided for under this Agreement shall be effected under
valid enforceable policies issued by insurers of recognized responsibility having a rating of at.
least A -V1ll in the most current edition of A.M. Best's Insurance Reports, or otherwise
acceptable to ARRA' Risk Manager.
1
18.2.3 All liability policies required hereunder shall be written on an occurrence
basis:. The required coverage may be provided by a blanket, multi- location policy. i
18.2.4 Should any of the required insurance be provided under a
. y q p form of
coverage that includes a general annual aggregate limit or provides that claims investigation or 3
legal defense costs are to be included in such general annual aggregate limit, such general 1
t
aggregates limit shall double the occurrence or claims limits specified. . i
18.2.5 Commercial general liability and automobile liability insurance policies
shall be endorsed or
otherwise. provide the following:
18.2.5.1 Name the Alameda Reuse and Redevelopment Authority 1
(ARRA), the Community Improvement Commission of the City of Alameda (CIC), and the City =-
of Alameda (City) and their councils, commissions, boards, departments, officers, agents,
employees and volunteers, as additional insureds, using ISO Additional Insured Endorsement
Form CG2026 (or a substitute providing equivalent coverage) or as may be mutually agreed. i
I
26
1 8.2.5,2 All policies shall be endorsed to provide thirty (30) days'
advance written notice to ARRA' Risk Manager of cancellation, except in the case of
cancellation for nonpayment of premium, in which case cancellation shall not take effct until
ten (10) da rior written notice. days prior has been given. Developer covenants and agrees to give
ARRA reasonable notice in the event g
. - v nt that it learns or has any reason to believe that any such
policy may be canceled or that the coverage of any such policy may be materially reduced.
18.2.6 All insurance provided under this Agreement shall be rimar insurance P Y ance to
any other insurance available to the. additional insureds, with respect to any claims arisin g out of
this Agreement, and that insurance applies separately to each insured against whom claim is
made or suit is brought. All policies shall include provisions denying such respective insurer the
right of subrogation ation and recovery P
g ry against ARRA. Such policies shall also provide for
severability of interests and that an act or omission of one of the named insureds which would
void or otherwise reduce coverage shall not reduce or void the coverage as to any insured and
shall afford coverage for all-claims ' .. � , '
g aims based on acts, omissions, injury or damage which occurred or
arose (or the onset of which occurred or arose) in whole or in part during the policy period.
18.2.7 Developer shall deliver to ARRA certificates of insurance and Additional
Insured Endorsements in form reasonably satisfactory to ARRA, evidencing the es
covers
required hereunder ("Evl4ence of Insurance" g Insurance"), o nor before the Effective Date of this
Agreement, and Developer shall provide ARRA with Evidence of Insurance thereafter before
the
expiration dates of expiring policies. In addition, Developer shall deliver to ARRA
complete lete
copies of the relevant policies upon re nest the refor from ARRA.
18.2.8 Notwithstanding anything to the contrary in this Agreement, Developer's
compliance with this Section 18.2 shall in no way relieve or decrease liability of Developer
op er
under Section 18.6 below, or any other provision of this Agreement, and no insurance carried b
Alameda shall be called upon to satisfy Developer's indemnification by
p , , fY p ication obligations under Section
118.6 below or any other obligations of Developer or its employees, agents, consultants and
contractors under this Agreement.
18.3 Developer hereby waives any and all rights of recovery against Alameda and its
employees for any loss or damage to the extent these damages are insured by insurance carried
by Developer, and the insurance � y .
y P , rance proceeds are actually received by the insured, including
amounts within any insurance deductible or self - insured retention. Developer shall, upon
obtaining policies of insurance required in this Agreement, give notice to the insurance c
• g , carrier or
carriers that the foregoing waiver of subrogation is contained in this Agreement.
18.4 Developer will take all steps necessary to ensure that any conditions on the
Project Site created by Developer's entry will not interfere with the normal operation on o1 the
Project Site or create any dangerous, unhealthy, unsightly or noisy conditions on the Project Site.
1 8.5 In connection with any and all entry by Developer or its employees, agents,
s
consultants, and contractors on the Project Site, Developer shall keep the Project Site free of all
liens by mechanics, materialmen, laborers, architects, engineers, and any other persons or firms
xns
engaged by Developer to perform any work in connection with the Project Site.
27
18.6 Developer shall indemnify and hold Alameda harmless from and against any
costs, damages, liabilities, losses, expenses, liens or claims (including, without limitation,
reasonable attorneys' fees) arising out of or relating to any entry on the Project Site by
Developer, its agents, employees, consultants or contractors in the course of performing the
inspections or studies provided for in this Agreement, or to any conditions on the Project Site
created by Developer's entry. The foregoing indemnity shall survive the expiration or
termination of this Agreement. .
18.7 Developer's activities on the Project Site shall be subject to the general
supervision and inspection of Alameda and to such rules and regulations regarding ingress,
egress, safety, sanitation and security as may be reasonably prescribed by Alameda from time to
time.
Section 19. cooperittion. In connection with this Agreement, the Parties shall reasonably .
cooperate with one another to achieve the objectives and purposes of this Agreement, including
cooperating with each other in preparing and negotiating the Transaction Documents with third
parties identified in Section 3 above. In so doing, the Parties shall each refrain from doing
anything that would render its performance under. this Agreement impossible.
Section.20. .Governmental Contact. Developer agrees that it will not meet, or engage in
negotiations, with any governmental officials.or staff (other than Alameda and its staff) whose
approval is required to a Transaction Document, concerning the Project or. the Project Site
without giving the Deputy Executive Director of the ARRA reasonable prior notice and the
opportunity to participate with Developer in any such meeting, or negotiations. ARRA agrees
that it will not meet, or engage in negotiations, with any governmental .officials or staff whose
approval is required to a Transaction Document, concerning the Project or the Project Site
without reasonable prior notice to Developer. ARRA shall keep Developer informed of the
substance of any such meetings and negotiations and shall permit Developer to participate in. the
same. Further, Alameda and Developer agree to refrain from knowingly engaging in contacts or
com u iications with government officials (other than Alameda staff) in a manner reasonably
expected to prejudice the, interests of the other Party.
Section 21. Leases. .:
21.1 New Lease Termination Rights. During the Exclusive Negotiation Period (1)
ARRA shall consult with Developer with respect to prospective tenants and terms of any leases
of any portion of the Project Site, and (ii) without the written consent of Developer, ARRA shall
not enter into any leases with respect to the Property or any portion thereof which does not
contain the following clause:
Section Compliance with LIFOC. Notwithstanding any provision of
this Lease, Landlord and Tenant hereby agree as follows: (i) Tenant will not do
or permit anything to be done in or on the Premises which will cause_ the
occurrence of a default-by Landlord under the LIFOC, (ii) if the LIFOC expires or
is terminated for any reason, then this Lease shall thereupon terminate, without
any liability to Landlord, as if such date were the scheduled expiration date of the
28
Term, as defined in Section below, and (iii) this Lease shall be terminable by
Landlord without penalty on sixty (60).days advance written notice.
212 Existin Uses. Notwithstanding anything to the contrary in this Section 21, as a
condition precedent to the DDA, ARRA or its governmental successors or assigns shall be able
to enter into the following leases attic Property with consultation, but without the consent of
Developer:
21.2.1 City Hall West (Building 1)
21.2.2 Fire Station No. 5 (Building 6)
212.3 O'Club (Building 60) (collectively, Sections 21.2.1 through 21.2.3 shall be
referred to as the "City Buildings ")
Such leases shall provide that it shall be an event of default for the subject tenant (or its
permitted successors in interest under_ this Section 2 1.2) . to cease active use of or cease to occupy
said property for a period of greater than three (3) months. Further, such leases shall contain
provisions that prohibit the assignment, transfer, sublet,, or other disposition of the lease to any
party other than Alameda or its constituent bodies. Developer shall accept conveyance of the
portions of the Property on which such leases are located subject to such leases, provided that
Developer may, at its sole cost and expense, relocate such use of any or all of the City Buildings
g
on terms and conditions. approved by Alameda, which approval shall not be unreasonably
withheld.
213 APT Headend Lease. Notwithstanding anything to the contrary in Section 21.1
above, Alameda has an interest in continuing the lease with APT of Building 2, Wing (the
win 3
"APT ,
APT Headend Lease") due to the service provided by APT from the leased premises and the
related equipment installed thereon, and shall condition conveyance of the portion of the
Property subject to the APT Headend Lease on extension of the APT Headend Lease for a long-
term, market -rate lease.
Section 22. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California.
Section 23. Entire Agreement. This Agreement contains the entire agreement of the Parties
regarding the Project. This Agreement may be modified only by written agreement signed by the
Parties hereto.
Section 24. Captions. Captions at the beginning of each section of this Agreement are for
reference only, and shall in no way define or interpret any provision hereof.
Section 25. Construction. The provisions of this Agreement have been jointly drafted by the
Parties and shall be constructed as to the fair meaning and not for or against any Party based
upon any attribution of such Party as the sole source dale language in question,
Section 26. Non-Waiver. No waiver made by either Party with respect to the performance, or
manner or time of performance, or any obligation of the other Party or any condition to its own
29
obligation under this Agreement will be considered a waiver with respect to the particular
obligation of the other Party or condition to its own obligation beyond those expressly waived to
the extent of such waiver, or a waiver in any respect in regard to any other rights of the Party
making the waiver or any other obligations of the Party.
Section 2'7. Time Periodq. Any time -period to be computed pursuant to this Agreement shall be
computed by excluding the first day and including the last day. Yf the last day falls on a
Saturday, Sunday or holiday, the last day shall be extended until the next business day that
Alameda is open for business, but in no event shall. the extension be for more than three (3)
calendar days. All references to days in this Agreement shall mean calendar days unless
otherwise expressly specified.
Section 28. Time of the Essence. Time is of the essence with respect to each provision of this
Agreement, including; without limitation, each Mandatory Milestone set forth in the Mandatory
Milestone Schedule of Perforrnance attached hereto as Exhibit 11.-1.
Section 29. Parties Not Co- venturers. Nothing in this Agreement is intended to or does
establish the Parties as partners, co- venturers, or principal and agent with one another.
Section 30. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the same agreement.
Section 31. Exhibits. References in this Agreement to exhibits (unless the context otherwise
requires) is to the exhibits described on the List of Exhibits attached hereto, all of which exhibits
are hereby incorporated by reference into this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK}
30
IN WITNESS WHEREOF, the Parties, who have had the opportunity to consult with
their attorneys with respect hereto and who fully and completely understand the to i ns and
provisions hereof, have executed this Agreement as of the date first set forth above.
ARRA:
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY,
•a joint powers authority formed under California law
By:
Name:
Title:
Approved as to form:
A
By: ..21 :AV k►,.
r
Name: TereS ii it.. /(9hfThp/L
Title: M. , )th
[ SIdNATURBS CONTINUE
MC:
COMMUNITY IMPROVEMENT COMMISSION OF THE CITY OF ALAMEDA,
a public body, corporate and politic
By:
Approved as to form:
Name: By:
Title: . Name:
Title: We/l/ CcuP}
[ SIGNATURES CONTINUE
LIZ
CITY OF ALAMEDA,
a municipal corporation
By:
Approved as to form:
Name: By:
s
Title: Name:
Title:
[ SIGNATURB3 CONTINUB
Developer:
sCC ALAMEDA POINT LLC,
a Delaware limited lia i ` ity co Z' an
By.
Name:
Title:
1
LIST OF EXHIBITS
Exhibit A Map of the Project Site
Exhibit B -1 Schedule of Perfornnance Mandator
� Y Milestones)
Exhibit B -2 Schedule of Performance (Non - Mandatory Milestones)
Exhibit C Annual Budget
Exhibit A
Map of the Project Site
[Attached
�-
.
Schedule of Performance
(Mandatory.Milestones)
All terms not defined herein shall have the respective meanings ascribed to them in the
Agreement to which this exhibit B-1 is attached.
Unless otherwise provided, all Mandatory Milestones are measured from the Effective
Date (for example, eight (8) months means the date which is eight 0$) months after the Effective
Date).
A. Mandatory Milestone Submi §.sion Date•
1, Master Project Schedule: Thirty. (30) business days .
2. Development Concept: Eight (8) months
3. Infrastructure Plan: Eight (8) months
4. Business Plan: Eight (8) months
5: Entitlement Application: Ten (10) months
B. Mandatory Milestone Completion Date
1. Project Pro Forma: Ten (10) months
Exhibit B-2
Schedule of Performance
(Non - Mandatory Milestones)
All terms not. defined. herein shall have the respective meanings ascribed to them in the
Agreement to which this Exhibit B-2• is attached.
Unless otherwise provided, all'Non Mandatory Milestones are measured from the
Effective Date (for example, eight (8) months means the date which is eight (8) months after Effective Date).
g the
Non- Mandatory Milestones described below are good faith estimates by the Parties of the
time required to complete the Transaction Documents.
Non»Mlfldato Milestone 'Com eti
..- -.�-�- �`Y pl on Date
x. EDC MOA Amendment 18 months
a. Finalize Navy Term Sheet 6 months
b. Submit EDC application 10 months
c, Finalize EDC MOA Amendment 18 months
2. TPA Supplemental Environmental 24 months
Impact Statement (SEIS).
a. Project scoping 11 months
b. Circulate Draft SEIS
18 months
c. Hearings and comments 18 -24 months
d. Finalize SEZS - 24 months
3. Section 106 Memorandum 24 months
a. Revise historic resources 7 months
report
b. Economic study on buildings 15 months
c. Finalize Section 106 Memorandum 24 months
amendment
4. USFWSINIMIFS Biological Documents
24 months
a. Biological Assessment/reinitiate
Section 7 consultation with USFWS
6 months
b. Finalize new Biological
Opinion with USFWS
18 months
-
0. Predator Management
Agreement
24 months
d. Determine if NMFS Biological
Opinion necessary /conduct Biological
Assessment
6 months
.
- -.0. Finalize NMPS Biological Opinion
18 months
5. Early Transfer Documents
24 months
a. Finalize Draft Navy Term Sheet
6 months
b. Draft ETCA
12 months
c. Draft Administrative Order (AOC)
with Environmental Protection Agency
(EPA), Department of Toxic Substances Control,
Regional Water Quality Control Board -
15 months
d. Draft FOSET
18 months
e, Public Comment/Finalize ETCA,
• AOC, FOSET, submit to Governor /.EPA
21 months
f. Approval by Governor/EPA
24 months
g.. Final rem ediation contract and
environmental. insurance ' olicies
24 m onth s
. CEQA Documents
24 months
a. Project scoping .
10 months
b. Notice of Preparation
11 months
c. Circulate Draft Environmental Impact
Report (EIR)
18 months
d. Bearings and comments /finalize EIR
24 months
ti
1
CAA/DDA
a. CAA executed
b. Mt DDA
c. Public hearings
24 months
12 months
18 months
18 -24 months
d. Approval of DD,A
24 months
•
Development Agreement /Entitlements 24 months
•
a. - Submit Entitlement Application
b. Public hearings/approvals
c.. Development Agreement finalized
and approvals anted
10 months
1824 months
24 months
9. Tidelands Trust Exchange Agreement
a. Submit draft Tidelands Trust
Exchange Agreement to California State Lands
.Commission (CLSC)
b. Reach agreement on language with
C Sc.staff
12 months
3 months
9 months
0. Obtain ap rp oval of CLSC 12 months
14. Public Planning Process
a. introductory meetings/
constraints analysis
b. First round public planning charrettes
24 months
3 months
4-6 months
c. Second round public planning
charrettes
6-8 months
d. Development Concept public review
review
0. Historic Preservation Plan public
f. Focused topic community meetings
10 months
10 -12 months
12 -18 months
g. Hearings and comments on
E I R /DD A /entitlements
18 -24 months
MOIL
Annual Budget
[Attached]
NAMAlamckAP1Docslw-ENA (Alameda Point) (7-12-07) (final)
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