Resolution 13835CITY OF ALAMEDA RESOLUTION NO. 13 8 3 5
APPROVING AND AUTHORIZING EXECUTION OF A
PUBLIC IMPROVEMENTS CONSTRUCTION AGREEMENT
BETWEEN THE CITY AND HARSCH INVESTMENT CORP.
WHEREAS, Harsch Investment Corp. ( "Harsch ") is the owner of the South Shore
Shopping Center in Alameda, California` (the "Center "); and
WHEREAS, by Planning Board Resolution No PB-03-40, the City of Alameda ( "City ")
approved the reconstruction and expansion of the South Shore Shopping Center ( "Center
Improvements "), subject to various conditions, one of which is construction and installation of
new signalization improvements to the Park' Street and Otis Drive intersection to change the
existing, pre -timed signal to a fully actuated signal, including: installation of a new signal
controller, vehicle loop detectors, signal mast arms, traffic striping modification and all
equipment necessary to fully actuate the intersection (the "Public Improvements "); and
WHEREAS, the Center Improvements have attracted new retailers that have provided a
stimulus for increased economic activity not only in the Center, but also along Park Street within
the Business and Waterfront Improvement Project (the "BWIP ") and
WHEREAS, the increased economic activity within both the Center and the area of the
BWIP ( "BWIP Project Area ") has resulted in increased vehicular traffic further exacerbating the
existing inadequate traffic circulation along the Park Street corridor, both throughout the entire
BWIP Project Area and outside the BWIP Project Area, which is causing delays that exceed the
City's General Plan requirements; and
WHEREAS, the Public Improvements will be of primary benefit to the BWIP Project
Area as they will improve vehicular and pedestrian traffic safety and alleviate the traffic
congestion not only at the intersection of Park Street and Otis Drive, but also along the entire
downtown Park Street corridor within the BWIP Project Area; and
WHEREAS, due to the Public Improvements being of primary benefit to the BWIP
Project Area, City believes it is fair and equitable for Harsch and the City, on behalf of the
Community Improvement Commission of the City of Alameda ( "Commission "), to share the
costs of the Public Improvements; and
WHEREAS, City and Commission entered into a Cooperation Agreement dated June 18,
1991, which authorizes the City to assist the Commission in carrying out the Plan and the
Commission to reimburse City for such assistance, including the provision of public
improvements that benefit the BWIP Project Area; and
WHEREAS, pursuant to Section 33445 of the Community Redevelopment Law, the
Commission is authorized, with the consent of the City Council, to pay all or part of the value of
the land for and the cost of the installation and construction of any building, facility, structure or
other improvement which is publicly owned either within or without a project area upon a
determination by the City Council that such building, facility, structure or other improvement is
of benefit to the project area or the immediate area in which the project is located, that no other
reasonable means of financing such building, facility, structure or other improvement are
available to the community, that the payment of funds for the cost of the building, facility,
structure or other improvement will assist in the elimination of one or more blighting conditions
inside the project area, and that the provision of the building, facility, structure or other
improvement is consistent with the implementation plan adopted by the Commission; and
WHEREAS, the Public Improvements were covered by a Mitigated Negative Declaration
for the Center adopted by the City Planning Board on May 12, 2003; and
WHEREAS, the . City desires to enter into the Public Improvements Construction
Agreement, attached hereto as Exhibit A ( "Public Improvements Construction Agreement ") with
Harsch to set forth the terms and conditions for the design, construction, installation and payment
of the Public Improvements;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ALAMEDA DOES
HEREBY RESOLVE AS FOLLOWS:
Section 1. City Council hereby finds and determines that the provision of the proposed
Public Improvements pursuant to the Public Improvements Construction Agreement is necessary
to effectuate the purposes of the Plan, and the Commission is authorized, with the consent of the
City Council, to provide such Public Improvements. The City Council further finds and
deteuuines that the Public Improvements are of primary benefit to the BWIP Project Area and the
immediate neighborhood in which the Project Area is located; that no other means of financing
the Public Improvements is available to the City; that the payment of funds by the Commission
for such Public Improvements will assist in eliminating blight within the BWIP Project Area and
is consistent with the Commission's Implementation Plan adopted pursuant to Section 33490 of
the Community Redevelopment Law. These findings and determinations are based upon the
following facts:
a. The Public Improvements are located within three blocks of the BWIP
Project Area and will alleviate traffic congestion and improve pedestrian and vehicle traffic
safety along the entire downtown Park Street corridor within the Project Area which will assist in
attracting more business and strengthening the retail and commercial functions and the economic
base of the downtown area within the Project Area;
b. The owner of the Center is already being required to pay for a portion of
the costs of the Public Improvements, and the City does not have funds available for the
remaining costs of the Public Improvements;
c. The Public Improvements will eliminate blight by eliminating
inadequate traffic circulation conditions within the BWIP Project Area;
d. The Public Improvements are consistent with the Implementation Plan
for the BWIP, as the Implementation Plan's goals and programs provide for the elimination of
inadequate public improvements, and the strengthening of retail and other commercial functions
in the downtown areas and of the economic base, and the provision of improvements to public
infrastructure of benefit to the BWIP Project Area and the implementation of General Plan
recommendations.
Section 2. City Council hereby approves and authorizes the Commission to pay for
City's portion of the Public Improvements costs as set forth in the Public Improvements
Construction Agreement.
Section 3. The City Council hereby approves the Public Improvements Construction
Agreement substantially in the form attached hereto as Exhibit A, subject to any minor
conforming, technical or clarifying changes approved by the City Attorney. The Acting City
Manager is hereby authorized and directed to execute the Public Improvements Construction
Agreement on behalf of the City Council.
PUBLIC IMPROVEMENTS
CONSTRUCTION AGREEMENT
THIS PUBLIC IMPROVEMENTS CONSTRUCTION AGREEMENT is made this
day of 2005, by and between CITY OF ALAMEDA, a California municipal
corporation ( "City "), and HARSCH INVESTMENT REALTY, LLC, SERIES C, a Delaware
limited liability company ( "Developer ").
RECITALS
The following recitals are a substantive part of this Agreement:
A. Developer is the owner of that certain real property known as the South Shore
Shopping Center, located at 2160 Otis Drive, Alameda, California ("Property").
B. By City Planning Board Resolution No. PB -03 -40 adopted on July 28, 2003 ( "PB
Resolution "), Developer was granted approval for reconstruction and expansion of the South
Shore Shopping Center ( "Project "), subject to various conditions, including a requirement that
upon reaching certain square footage thresholds, Developer construct and install new traffic
signalization at the intersection of Otis Drive and Park Street to change the existing pre -timed
signal to a fully actuated signal, including installation of a new signal controller, vehicle loop
detectors, signal mast arms, traffic striping modification and all equipment necessary to fully
actuate the intersection ( "Public Improvements "). The Public Improvements shall be in
accordance with the Preliminary' Plans for Signal Modification at Otis Drive and Park Street
Intersection, Sheets 1 -4, dated March 1, 2005, attached hereto as Exhibit A and incorporated
herein.
C. Developer's Project has attracted new retailers that have provided a stimulus for
increased economic activity not only within the South Shore Shopping Center ( "Shopping
Center "), but also along the entire Park Street corridor area of the Business and Waterfront
Improvement Project Area ( "BWIP Project Area "). Without the Public. Improvements, the
increased economic activity within the. BWIP Project Area, together with additional square
footage planned for the Project, will add to Park Street's already inadequate traffic circulation by
lengthening the queues at the Park Street and Otis Drive intersection thereby further backing up
traffic along the entire Park Street corridor of the BWIP Project Area.
D. On June 18, 1991, City and the Community Improvement Commission of the City
of Alameda ( "Commission ") entered into a Cooperation Agreement which authorizes the City to
assist the Commission in carrying out the Community Improvement Plan for the Business and
Waterfront Improvement Project ("Plan") and the Commission to reimburse the City for such
assistance, including the provision of public improvements that benefit the BWIP Project Area.
E. Developer and City desire to enter into this Agreement to provide, among other
things, for Developer's construction, installation, and dedication to City of the Public
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Improvements and to set forth the parties' respective obligations with respect to payment of the
costs of said Public Improvements.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, it is agreed between
the parties as follows:
1. Purpose. The purpose of this Agreement is to guarantee Developer's satisfactory
and timely completion of the Public Improvements, to ensure Developer meets the conditions
and requirements of the Planning Board's approval of the Project, and to set forth the parties'
respective obligations with respect to payment of the costs of said Public Improvements.
2. Developer Deposit. At the time of execution of this Agreement by Developer,
Developer shall deliver to City a deposit in the amount of TWENTY -FIVE THOUSAND
DOT .T ARS ($25,000.00) ( "Deposit ") for - use by City to pay (i) City's out -of- pocket costs .
incurred in connection with the design of the Public Improvements and the preparation of plans
and specifications therefor, and (ii) the inspection fees payable in connection with City's
inspection of Developer's work of Public Improvements ( "City Costs and Fees "). In the event
the City Costs and Fees exceed the amount of the Deposit, City shall notify Developer, from time
to time, in writing of the additional 'amount(s) needed to pay the City Costs and Fees and within
ten days of such notification, Developer shall deliver such additional amount(s) to City and such
amount(s) shall become part of the Deposit. If, following Developer's completion of the Public
Improvements and City's acceptance of the dedication thereof, City determines that the City
Costs and Fees are less than the amount of the Deposit, City shall return the remaining amount of
the Deposit to Developer.
3. Duty to Design, Construct, and Install Public Improvements. Within 30 days
following the date of this Agreement and City's receipt of the Deposit described in paragraph 2
above, City shall prepare or cause to be prepared and deliver to Developer the final construction
plans and specifications for the Public Improvements. As a condition of approval of the Project,
the PB Resolution requires Developer to provide the Public Improvements at the time the total
square footage of the Shopping Center exceeds 590,000 square feet ( "Square Feet Threshold").
As described in Developer's schedule for construction of additions to the Shopping Center
attached hereto as Exhibit B and incorporated herein ( "Construction Schedule "), the additions
to Building 700 will result in the Shopping Center exceeding the Square Feet Threshold.
Therefore, prior to City' issuance of a building permit for any additions to Building 700,
Developer agrees to enter into a written contract with a licensed general contractor(s) reasonably
acceptable to City to construct and install the work of Public Improvements in accordance with
City's plans and specifications. City shall have the right to review and reasonably approve or
disapprove the contract award amount and the time period specified in the contract for
performance of the work of Public Improvements. City shall approve or disapprove the contract
award amount and time period within ten (10) business days of Developer's written request,
which shall be accompanied by a copy of the proposed contract. Following City's approval of
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said contract award amount and time period and Developer's receipt of all permits and approvals
required for construction of the Public Improvements, Developer shall commence and complete
construction and installation of the Public Improvements within the times and in accordance with
the provisions set forth in paragraph 5 below.
4. Payment of Public Improvements Construction Costs. All costs of
constructing and installing the Public Improvements shall initially be borne by Developer.
Provided (i) Developer has timely completed the Public Improvements in accordance with City's
plans and specifications therefor, and all other requirements of the City Municipal Code and
rulings made under it; and (ii) Developer is not in default of any of its obligations under this
Agreement; and (iii) City has accepted dedication of the Public Improvements, then City shall,
within ninety (90) days following City's acceptance of the dedication and Developer's written
request, pay to Developer an amount equal to the lesser of (a) the total amount of Eligible Costs
(defined below) incurred by Developer in connection with the design, construction and
installation of the Public Improvements minus $100,000.00 or (b) TWO HUNDRED
THOUSAND DOLLARS ($200,000.00) ( "City's Share ") to reimburse Developer for a portion
of said Eligible Costs. Developer's written request for disbursement of City's Share shall identify
the total Eligible Costs incurred by Developer and shall be accompanied by copies of invoices,
cancelled checks and such other evidence as may be reasonably requested by City supporting the
Developer's asserted amount of City's Share. "Eligible Costs" means the total out -of- pocket
costs and expenses paid by Developer (i) to City for the City Costs and Fees and (ii) to general
contractor(s) approved by City pursuant to paragraph 3 above for the work of Public
Improvements. Developer's staff time and attorneys fees (other than attorneys fees recoverable
under paragraph 18, below) shall be borne by Developer at its expense and shall not be included
for purposes of calculating City's Share.
5. Schedule and Completion. Subject to force majeure delays described in
paragraph 20 below, Developer shall commence and complete the work of Public Improvements
within the construction time period approved by City pursuant to paragraph 3, above. All work
of Public Improvements shall be completed in a good and workmanlike manner, in accordance
with City's construction plans and specifications and accepted construction practices and in a
manner equal or superior to the requirements of the City's Municipal Code and rulings made
under it. Notwithstanding any other provision hereof to the contrary, Developer must
satisfactorily complete the work of Public Improvements in accordance with the terms of this
Agreement and obtain City's final acceptance thereof prior to issuance of any certificate of
occupancy for any addition to Building 700 that would cause total . square footage of the
Shopping Center to equal or exceed 590,000 square feet. Developer acknowledges that
renovation and expansion of all tenant spaces in Building 700 as shown on Exhibits C -1 -and C -2
is expected to cause the Center to exceed 590,000 square feet. It is agreed that Noah's Bagels,
First United Services Bank, Dollar Tree and Anna's Linens are existing tenants and may remain
in occupancy, but occupancy of any expansion area that takes the overall project square footage
over 590,000 square feet will be contingent on satisfactory completion of the Public
Improvements and City's final acceptance thereof.
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6. Security Deposits. Within ten (10) calendar days after City's completion of the
plans and specifications for the Public Improvements, and in any event prior to Developer's
commencement of any work of Public Improvements, . Developer shall furnish to City two
security deposits in the form of surety bonds, irrevocable standby letters of credit, cash deposits,
pledges of securities, certificates of deposit, or other forms of security acceptable to the City,
each of which shall be equal to 100% of Developer's general contractor contract price, as security
(a) for the payment of all persons performing labor and furnishing materials and (b) for the
faithful performance of the construction of the Public Improvements. If the security deposits are
in the form of surety bonds, the surety issuing said bonds shall be admitted in the State of
California and shall be reasonably acceptable to the City. In addition, the performance bond(s),
whether issued by individual or corporate surety, shall, among other required terms and
conditions, contain conditions that (i) death of the named principal shall not operate as a release
of the obligation hereunder of the surety and (ii) extensions of time, if any, granted by City to
Developer or its contractor(s) for performance of the work of Public Improvements covered by
the bond shall not exonerate said surety, but rather shall extend for a like time the period of
limitations during which said surety shall remain bound by the undertaking. Upon satisfactory
completion of the Public Improvements, City's final acceptance thereof and expiration of
applicable statute of limitation time periods, City shall release and/or return to Developer the
security required to have been provided pursuant to this paragraph, but, excluding therefrom the
warranty period security called for in the paragraph below.
Upon satisfactory completion of the Public Improvements and prior to City's final
acceptance thereof, Developer shall furnish to City a surety bond or other form of cash or
security acceptable to the City in an amount equal to ten percent (10 %) of the Developer's
general contractor contract price as security to guarantee performance of any corrective work
throughout the warranty period described in paragraph 9 below.
7. Encroachment Permit. Developer, at its expense as an Eligible Cost, shall
obtain from City an encroachment permit for the work of Public Improvements at least fifteen
(15) calendar days before commencement of the Public Improvements work.
8. Approval of Permits. Developer shall be responsible for obtaining, at its
expense as an Eligible Cost, all permits and approvals required for construction and installation
of the Public Improvements. City and Developer agree to act promptly and in good faith to
expedite the issuance of permits necessary for the Public Improvements.
9. Warranty Period; Repair and Reconstruction. If, within a period of one (1)
year after City's final acceptance of the Public Improvements, all or any portion of the work of
Public Improvements installed or constructed under this Agreement, fails to fulfill any of the
requirements of the Agreement or the specifications referred to herein due to failure of or defect
in materials or workmanship, Developer shall, without delay and without cost to City, repair,
replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work to the
satisfaction of the City Engineer. Should Developer fail to act promptly or in accordance with
this requirement after written notice from City, or should the exigencies of the case require
repairs, replacements or reconstruction to be made before Developer can be notified, City may,
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at its option, make the necessary repairs, replacements or perform the necessary reconstruction
and Developer shall pay to the ` City the actual cost of such repairs, replacements and
reconstruction, plus ten percent (10 %). Except where the exigencies of the case require
immediate action, City agrees to notify Developer in writing if the Public Improvements fail to
fulfill any requirements of this Agreement and to specify the failure of or defect in materials or
workmanship and the actions required to be taken by Developer to cure the deficiencies. Upon
notification of any such defect, Developer shall correct, remedy or cure the defect within thirty
(30) days or, if such defect cannot be cured within thirty (30) days, then within such longer
period, provided Developer commences to cure the defect within such thirty- (30) day period and
thereafter diligently prosecutes said cure to completion.
10. Property Owner Not Agent of City. Neither Developer nor its agents or
contractors or subcontractors are ' agents of ' City in connection with the performance of
Developer's obligations under this Agreement.
11. Indemnification. Developer agrees to indemnify and hold the City harmless
from any and all claims for loss, damage, injury, or liability as defined in this paragraph 11.
a. As used in this paragraph "City" means the City of Alameda and the
Commission, and its and their respective elective and appointive boards, commissions, officers,
employees, consultants, agents and representatives.
b. The liabilities protected against are any liability or claim for damage of
any kind allegedly suffered, incurred or threatened because of actions defined below (except for
liability or claims resulting from the sole active negligence or willful misconduct of the City),
including personal injury, death, property damage, or any combination of these, and including
the defense of any suit, action or other proceeding concerning these.'
c. The actions causing liability are any, act or omission (negligent or non -
negligent) in connection with the matters covered by this Agreement and attributable to
Developer or any contractor, subcontractor, agent or employee of Developer, including failure of
either Developer or its contractors or subcontractors to take out and continuously maintain
Workers' Compensation Insurance. The actions also include the act of approving this Agreement
by the City. The indemnification in this paragraph 11 is not conditioned or dependent on whether
or not the City has insurance or other indemnification covering any of these matters.
12. Public Liability and Property Damage Insurance. Developer shall procure
Commercial General Liability Insurance `` protecting. Developer, City and Commission from
incidents as to bodily injury liability (including death) and property damage liability that may
occur as a result of the work of Public Improvements. Developer shall provide a certificate of
insurance to City prior to commencing the Public Improvements` work (or prior to
commencement of any work within the public right -of -way, whichever occurs first). The
insurance policy shall contain, or be endorsed to contain, the following provisions:
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a. City, Commission, and its and their officers, officials, employees and
agents are to be covered as additional insureds as respects liability arising out of activities
performed by or on behalf of Developer. The coverage shall contain no special limitations on the
scope of protection afforded to the City, Commission, and its and their officers, officials,
employees and agents.
b. The amounts of public liability and property damage coverage shall not be
less than FIVE MILLION DOLLARS ($5,000,000) per occurrence for bodily injury, death, and
property damage.
The insurance shall be written on an occurrence form and shall be
maintained in full force until the Public Improvements work has been completed to the
satisfaction of the City Engineer.
d. The insurance policy shall provide for thirty (30) days notice o
cancellation to City. The policy shall not be canceled, nor the amount of coverage be reduced,
earlier than thirty (30) days after City receives notice from the insurer of the intent of
cancellation or reduction.
e. Any failure to comply with the reporting provisions of the policy shall not
affect the coverage provided to City, Commission, and its and their officers, officials, employees,
consultants and agents.
f. Developer's ` insurance coverage shall be primary insurance as respects
City, Commission, and its and their officers, officials, employees, consultants and agents. Any
insurance, self - insurance or joint self - insurance maintained by City, Commission, or its or their
officers, officials, employees, consultants or agents shall be in excess of Developer's insurance
and shall not contribute to it.
g. Companies writing the insurance under this paragraph 12 shall be licensed
to do business in the State of California. Insurance is to be placed with insurers with a current
A.M. Best's rating of no less than AVlI.
13. Workers' Compensation Insurance. Developer shall not allow any work on the
Public Improvements to begin until Workers' Compensation Insurance has been obtained for all
employees of Developer and any contractor or subcontractor performing the work, in accordance
with the provisions of California Labor Code Section 3700, et seq. If a class of employees is not
protected under the Workers' Compensation Law, the Developer shall provide, or have each
contractor and subcontractor provide, adequate insurance for the protection of employees not
otherwise protected.
14. Compliance with Laws. Developer shall carry out the work of Public
Improvements in conformity with all applicable laws, including State Labor Code and Public
Contracts Code requirements; City zoning and development standards; building, plumbing,
mechanical and electrical codes; all other provisions of the City's Municipal Code and City
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Charter; and all applicable disabled and
Americans With Disabilities Act, 42 U.S.C.
4450, et seq., Government Code Section 11
Code Section 51, et seq.
handicapped access requirements, including the
Section 12101, et seq., Government Code Section
135, et seq., and the Unruh Civil Rights Act, Civil
15. Prevailing Wage Obligations. Developer acknowledges and agrees that the
work of Public Improvements will constitute "public works" as defined in Labor Code Section
1720 in that such Public Improvements involve construction, alteration, demolition, installation,
or repair work done under contract and paid for in whole or in part out of public funds under
Labor Code Section 1720. Accordingly, Developer shall comply with all State Labor Code
requirements and other applicable laws, regulations, ruling and requirements pertaining to public
works, including those pertaining to payment of "prevailing wages" (collectively, "Public
Works/Prevailing Wage Laws"). Developer shall (i) require its contractors and subcontractors
to submit certified copies of payroll records to Developer; (ii) maintain complete copies of such
certified payroll records; and (iii) make such records available to the City and its designees for
inspection and copying during regular business hours at the Property or at another location
within the City of Alameda. Developer shall also include in Developer's general contractor
agreement a provision, in a form acceptable to City, obligating Developer's general contractor to
require its contractors and/or subcontractors to comply with all such Public Works/Prevailing
Wage Laws.
Developer shall defend City and Commission, and its and their respective officers,
employees, agents and representatives (collectively, "Indemnitees ") from and against any and all
present and future liabilities, obligations, orders, claims, damages, fines, penalties and expenses
(including attorneys' fees and costs) (collectively, "Claims "), arising out of or in any way
connected with Developer's obligation to comply with all Public Works/Prevailing Wage Laws
with respect to the work of Public Improvements, including all Claims that may be made by
contractors, subcontractors or other third party claimants pursuant to Labor Code Sections 1726
and/or 1781, as amended and added by Senate Bill 966.
Developer hereby waives, releases and discharges forever the Indemnitees from any and
all present and future Claims arising out of or in any way connected with Developer's obligation
to comply with the Public Works/Prevailing Wage Laws pursuant to this paragraph 15.
Developer is aware of and familiar with the provisions of Section 1542 of the California Civil
Code which provides as follows:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if known
by him must have materially affected his settlement with the debtor."
As such relates to this paragraph 15, Developer hereby waives and relinquishes all rights and
benefits which it may have under Section 1542 of the California Civil Code.
16. Notice of Breach and Default; Developer Right to Cure. If Developer refuses
or fails to timely complete the work of Public Improvements, or if the Developer is adjudged
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bankrupt or makes a general assignment for the benefit of creditors, or if a receiver is appointed
in the event of Developer's insolvency, or if Developer or any of Developer's contractors,
subcontractors, agents or employees violate any of the terms of this Agreement, the City may
serve upon the Developer and the financial institution holding the security deposit or issuing the
surety bonds written Notice of breach and default of this Agreement. Developer shall have ten
(10) days from receipt of the Notice of a breach and default to cure the specified breach and
default.
17. Breach of Agreement; Performance by City. If, following Notice from City,
Developer fails to cure the breach and default within the time set forth in paragraph 16, City may
proceed to complete the Public Improvements work by contract or other method City considers
advisable, at the sole expense of Developer. Developer, immediately upon demand, shall pay the
actual, out -of- pocket costs and charges related to said work, together with a ten percent (10 %)
overhead charge. In this event, City, without liability for doing so, may take possession of and
utilize in completing the work such materials and other property belonging to Developer as may
be on or about the Property and necessary for completion of the work. In the event of default, the
financial institution holding the security deposit or issuing the surety bonds shall be liable to City
to pay the actual, out -of- pocket costs and charges related ` to said work, together with a ten
percent (10 %) overhead charge incurred by City as provided herein for completion of the Public
Improvement, up to the face amount of the obligations specified under paragraph 6.
18. Remedies. Either party may bring legal action to: (a) compel performance of this
Agreement by the defaulting party; and (b) recover the defaulting party's share of the costs of
completing the Public Improvements, including the non - defaulting party's administrative and
legal costs. The parties agree that if legal action is brought by any party to enforce the provisions
of this Agreement, the prevailing party shall be entitled to recover all of the costs of suit and
reasonable attorney's fees, and all other expenses of litigation as determined by the Court. No
failure on the part of a party to exercise any right or remedy hereunder shall operate as a waiver
of any other right or remedy that said party may have hereunder.
19. Notices, Demands, and Communications between the Parties. Any approval,
disapproval, demand, document or other notice ( "Notice ") which either party may desire to give
to the other party under this Agreement must be in writing and may be given by any
commercially acceptable means, including via first -class mail, personal delivery or overnight
courier, to the party to whom the Notice is directed at the address of the party as set forth below,
or at any other address as that party may later designate by Notice.
To City: ` City of Alameda
2264 Santa Clara Avenue, Room 120
Alameda, California 94501
Attention: City Manager
and: City of Alameda
Public Works Department
950 West Mall Square, First Floor
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Alameda, California 94501
Attention: Public Works Director
and: City of Alameda
Development Services Department
950 West Mall Square, First Floor
Alameda, California 94501
Attention: Development Services Director
To Developer:
and:
Harsch Investment Realty, LLC, Series C
523 South Shore Center West
South Shore Shopping Center
Alameda, California 94501
Attention: Michael Corbett,
Retail Portfolio Manager
Harsch Investment Realty, LLC, Series C
1121 SW Salmon Street
Portland, OR 97205
Attention: Legal Department
Any Notice shall be deemed received immediately if delivered by hand, on the third day from the
date it is postmarked if delivered by first -class mail, postage prepaid, and on the next business
day if sent via nationally recognized overnight courier. Notices sent by a party's attorney on
behalf of such party shall be deemed delivered by such party.
20. Enforced Delay; Extension of Times of Performance. Subject to the
limitations set forth below, performance by either party hereunder shall not be deemed to be in
default, and all performance and other dates specified in this Agreement shall be extended, where
delays are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties;
acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes;
governmental restrictions or priority; litigation, including court delays; unusually severe weather;
acts or omissions of the other party; or acts or failures to act of other public or governmental
agency or entity (other than the acts or failures to act of City which shall not excuse performance
by City). An extension of time for any such cause shall be for the period, of the enforced delay
and shall commence to run from the time of the commencement of the cause, if Notice by the
party claiming such extension is sent to the other party within thirty (30) days . of the
commencement of the cause. Times of, performance under this Agreement may also be extended
in writing by the mutual agreement of City and Developer.
21. Change of Property Owner. If the Developer identified under the introductory .
paragraph to this Agreement ceases to have a legal interest in the Property, then a Notice to that
effect shall be filed with the City. The Notice shall include the name and address of the new
owner of the Property, a copy of the deed, and a new form of security from the new owner
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conforming to the requirements of paragraph 6. Upon the filing of the Notice with the City, the
successor owner shall be charged with the obligations of Developer under this Agreement.
22. Heirs, Successors, and Assigns. This Agreement shall be binding upon and
inure to the benefit of the heirs, successors, and, assigns of the parties to it.
23. Alteration of Agreement. Developer hereby stipulates and agrees, on behalf of
itself and the financial institution holding the security deposit or issuing the surety bonds, that
any addition, alterations or modifications to this Agreement or to the plans and specifications for
the Public Improvements, including any extension of time within which the work hereunder may
be completed, shall in no way affect its obligations on the improvement security furnished
hereunder. Developer stipulates and agrees that, in the event of an uncured default by
Developer, it shall have no right to dispute the propriety of any demand made by the City for the
payment of the improvement security furnished hereunder.
24. Miscellaneous Terms and Provisions.
a. This Agreement and the encroachment permit to be obtained by Developer
as provided in paragraph 7 above, contain the full, final, and exclusive statement of the contract
of Developer and City regarding the Public Improvements to be constructed by Developer.
b. If any provision of this Agreement is adjudged invalid, the remaining
provisions of it shall not be affected.
c. If there is more than one signer of this Agreement as Developer, their
obligations are joint and several.
d. Time is of the essence with respect to the perfoiinance by Developer of
each and every obligation and condition of this Agreement.
e. The headings contained in this Agreement have been inserted for
convenience only and in no way define or limit the scope of interpretation of the Agreement.
f. Each party executing this Agreement on behalf of a party represents and
warrants that such person is duly and validly authorized to do so on behalf of the entity it
purports to bind and if such party is a partnership, corporation or limited liability company, that
such partnership, corporation or limited liability company has full right and authority to enter
into this Agreement and perform all of its obligations hereunder.
g. This Agreement may be executed in multiple counterparts, each of which
shall constitute one and the same instrument and shall become binding upon the parties when at
least one copy hereof shall have been signed by both parties hereto.
h. The laws of the State of California shall govern the interpretation and
enforcement of this Agreement without reference to principles of conflict of laws. Venue for any
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action brought under this Agreement shall be in the Superior Court of Alameda County,
California.
i. Each party to this Agreement ' has had an opportunity to review the
Agreement, confer with legal counsel regarding the meaning of the Agreement, and negotiate
revisions to the Agreement. Accordingly, this Agreement shall be interpreted as though drafted
by both parties and neither party may rely upon Civil Code section 1654 to interpret any
uncertainty in the meaning of the Agreement.
j. This Agreement may only be
agreement of both parties.
odified or amended by mutua
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written
IN WITNESS WHEREOF, City and Developer have executed this Agreement on the
respective dates set forth below.
CITY:
CITY OF A AMEDA, a California municipal
corporation
Dated: , 2005 By:
William C. Norton, Acting City Manager
ATTEST:
Lara W. Weisiger, City Clerk
APPROVED AS TO FORM:
RECOMMENDED FOR APPROVAL:
Matth
Pub
w Naclerio
ks Direc
Leslie A. Little
Development Services Director
Dated:
--AND--
DEVELOPER:
HARS CH INVESTME
SERIFS C, a D
2005 By:
, LLC,
ay company
R
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y Kyte,
Ice President
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EXHIBIT A
PRELIMINARY PLANS FOR SIGNAL MODIFICATION
[Sheets 1 -4, dated March 1, 2005, incorporated herein by reference, and on file for public review
in the City of Alameda Public Works Department]
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EXHIBIT B
SOUTH SHORE CONS'IRUCTION SCHEDULE
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EXHIBIT C -1
EXHIBIT C -2
7 I
111 1111
I1�n *ail
I, the undersigned, hereby certify that the foregoing Resolution was duly and regularly
adopted and passed by the Council of the City of Alameda in the regular meeting of the City
Council on the 3rd day of May, 2005, by the following vote to wit:
AYES:
Councilmembers Daysog, deHaan, Gilmore, Matarrese
and Mayor Johnson — 5.
NOES: None.
ABSENT:
ABSTENTIONS: None
IN WITNESS, WHEREOF, I have hereunto se hand and affixed
this 4th day of May, 2005.
seal of said City
Lara Weisiger, Cit
City of Alameda