CIC Resolution 03-121CITY OF ALAMEDA RESOLUTION NO. 13 6 6 5
COMMUNITY IMPROVEMENT COMMISSION RESOLUTION NO. 03 -121
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY RESOLUTION NO. 3 3
JOINT RESOLUTION
AUTHORIZING THE ALAMEDA CITY MANAGER, THE EXECUTIVE
DIRECTOR OF THE COMMISSION AND THE EXECUTIVE DIRECTOR OF THE
AUTHORITY TO ENTER INTO A CONDITIONAL ACQUISITION AGREEMENT
BY AND BETWEEN THE ALAMEDA POINT COMMUNITY PARTNERS FOR
PROPERTY AT ALAMEDA POINT
WHEREAS, the City of Alameda (City), the Alameda Reuse and Redevelopment
Authority (ARRA) and the Community Improvement Commission (CIC) entered into an
Exclusive Negotiation Agreement (ENA) with the Alameda Point Community Partners
on July 17, 2002 to provide the terms under which the parties would negotiate for the
purchase and development of substantial property located at Alameda Point; and
WHEREAS, the parties to the ENA have negotiated as contemplated by the ENA
and now wish to establish certain terms which would govern the process for considering
future entitlement, sale and development, the Alameda Point property, if such were to
occur; and
WHEREAS, all recitals in the Conditional Acquisition Agreement (CAA)
attached hereto as Exhibit A and all statements in the Notice of Exemption attached
hereto as Exhibit B are adopted as findings; and
WHEREAS, the CAA, represents the full intent of the parties.
NOW, THERFORE BE IT RESOLVED by the City Council that the City
Manager is authorized and directed to execute the CAA, substantially in the form and
containing the term and conditions and covenants, attached hereto as Exhibit A, and issue
the Notice of Exemption attached as Exhibit B.
BE IT FURTHER RESOLVED by the CIC that its Executive Director is
authorized and directed to execute the CAA, substantially in the form and containing the
terms and conditions and covenants, attached hereto as Exhibit A, and issue the Notice of
Exemption attached as Exhibit B.
BE IT FURTHER RESOLVED by the ARRA that its Executive Director is
authorized and directed to execute the CAA substantially in the form and containing the
terms and conditions and covenants, attached hereto as Exhibit A, and issue the Notice
of Exemption attached as Exhibit B.
EXHIBIT A
CONDITIONAL ACQUISITION AGREEMENT
By and Between
COMMUNITY IMPROVEMENT COMMISSION
OF THE CITY OF ALAMEDA, THE CITY OF ALAMEDA AND THE ALAMEDA REUSE
AND REDEVELOPMENT AUTHORITY
and
ALAMEDA POINT COMMUNITY PARTNERS, LLC
FOR A PORTION OF THE FORMER ALAMEDA NAVAL AIR STATION
Dated and executed as of November 12, 2003
THIS CONDITIONAL ACQUISITION AGREEMENT (this "Agreement ") is entered
into as of the 12th day of November, 2003 (the "Execution Date "), by and between the
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY, a Joint Powers Authority
established by the City of Alameda and the City Improvement Commission under the California
Joint Exercise of Powers Act and a public entity lawfully created and existing under the State of
California ( "ARRA ") the COMMUNITY IMPROVEMENT COMMISSION OF THE CITY
OF ALAMEDA, a public body corporate and politic exercising governmental functions and
powers and organized and existing under Redevelopment Law (the "CIC "), and the CITY OF
ALAMEDA, a municipal corporation and charter city organized under the laws of the State of
California ( "City"), (the CIC, City and ARRA are referred to hereinafter collectively, and as
applicable, as "Alameda ") and ALAMEDA POINT COMMUNITY PARTNERS, LLC, a
Delaware limited liability company ( "APCP "). All initially capitalized telins in this Agreement
shall have the meanings given where first defined in this Agreement. Appendix 1 to this
Agreement identifies where each of these definitions is located in this Agreement.
The "Effective Date" of this Agreement shall be the date upon which APCP has
performed each of the items set forth in Sections 5.5 and 7.3 of this Agreement. Upon timely
performance by APCP of its obligations under Section 5.5 and delivery of the materials listed in
Attachment 8 pursuant to section 7.3, the Parties shall confirm the Effective Date by executing
and delivering the Memorandum of Effective Date attached hereto as Attachment 9.
RECITALS
A. The United States of America, acting by and through the Department of the Navy
( "Navy ") is the owner of certain real and personal property commonly referred to as the former
Alameda Naval Air Station ( "NAS Alameda "), which was closed as a military installation and is
subject to disposal pursuant to and in accordance with the Defense Base Closure and
Realignment Act of 1991, as amended (Pub. Law No. 101 -510). The Navy has previously
conveyed a certain portion of NAS Alameda to ARRA referred to as "East Housing."
B. NAS Alameda is located within the City of Alameda, State of California and is shown
on the site plan attached hereto as Attachment 1 ("Site Plan "). The property that is the subject
of this Agreement consists of approximately 800 acres located in NAS Alameda (the "Project
Site "). The approximate boundaries of the Project Site are also shown on the Site Plan. Certain
parcels located within the boundaries shown on the Site Plan will be excluded from the Project
Site, as more particularly described in Article I of this Agreement.
C. In accordance with the provisions of the National Environmental Policy Act
( "NEPA "), the Navy prepared an Environmental Impact Statement ( "EIS ") for the Disposal and
Reuse of Naval Air Station Alameda and the Fleet and Industrial Supply Center, Alameda Annex
and Facility. The Final EIS was issued in October 1999, and a Record of Decision regarding the
disposal and reuse was issued by the Navy on February 29, 2000.
D. The Navy and ARRA have agreed upon a method of conveyance of NAS,
Alameda, including the Project Site, to ARRA as set forth in the Economic Development
Conveyance Memorandum of Agreement ( "EDC MOA ") dated June 6, 2000. The Navy may
transfer the Project Site either pursuant to a Finding of Suitability for Transfer ( "FOST ")under
Section 120(h)(3)(A) of the Comprehensive Environmental Response, Compensation and
Liability Act ( "CERCLA ") or pursuant to a Finding of Suitability for Early Transfer ( "FOSET ")
under CERCLA Section 120(h)(3)(C), or other appropriate legal authority, prior to completion of
all remedial action.
E. Prior to the conditions for a deed transfer of NAS Alameda being met, immediate
possession of all or portions of NAS Alameda have been granted by the Navy to ARRA pursuant
to a Lease in Furtherance of Conveyance ( "LIFOC ") dated June 6, 2000. The City also owns the
fee interest to certain portions of the Project Site that the City previously leased to the Navy.
The lease of such portions has been terminated and title is presently in the City, subject to certain
remediation obligations retained by the Navy.
F. In accordance with procedures established under Federal and California state law
governing the planning, disposition and reuse of closed military bases, ARRA adopted the
Alameda NAS Community Reuse Plan (the "Reuse Plan ") on January 31, 1996, with
subsequent amendments in 1997, after several years of public input. The Reuse Plan is a
mixed -use, transit- oriented proposal that provides for an orderly transition of NAS Alameda
from military to civilian use, while advancing the community goals for new employment,
economic development, environmental protection, provision of open space and preclusion of
undesirable uses.
G. In accordance with the Community Redevelopment Law of the State of California
(Health and Safety Code Section 33000 et seq., as it may be amended from time to time)
( "Redevelopment Law "), the City Council approved and adopted (i) the Community
Improvement Plan (the "APIP Community Improvement Plan") for the Alameda Point
Improvement Project (the "APIP Project ") on March 3, 1998, by Ordinance No. 2754. The
property subject to the APIP Community Improvement Plan is referred to herein as the "APIP
Project Site ". The Project Site is located within the APIP Project Site.
H. Alameda has determined that the Project Site can best be developed by a private
developer. To accomplish redevelopment of the Project Site, Alameda issued a Request for
Business Proposals ( "RFBP ") in April 2001. APCP submitted a Response to the RFBP in June,
2001 and was selected by ARRA to be the master developer of the Project Site in August, 2001.
I. Alameda and APCP entered into an Exclusive Negotiating Agreement dated
January 7, 2002, which was superseded by the First Amended Negotiating Agreement dated as of
July 17, 2002 (the "ENA "), pursuant to which Alameda and APCP agreed, among other things,
to negotiate diligently and in good faith to prepare certain agreements and complete certain tasks
in order to enter into a Disposition and Development Agreement ( "DDA ") for the Project Site.
J. Pursuant to the ENA, APCP has expended significant sums in furtherance of
completing the agreements and tasks necessary in order to reach agreements and obtain the
approvals required to enable the Parties to enter into the DDA. To complete the agreements and
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tasks necessary to permit the APCP to obtain the agreements and approvals required prior to
finalizing and approving a DDA, APCP will be required to continue to expend significant funds
and planning and management expertise and resources.
K. Following negotiations between ARRA and APCP, ARRA has agreed to fund
certain costs and to carry out certain predevelopment activities related to the Navy negotiations,
remediation issues and planning matters associated with the Project Site. As further described in
this Agreement, once ARRA has funded such amounts and/or carried out such tasks, if APCP
desires to keep this Agreement in effect, APCP will be required to again assume sole and full
responsibility for funding predevelopment activities. In consideration of the expenditures made
to date and for APCP's conditional obligation to resume funding such expenditures in the future,
Alameda desires to grant APCP the exclusive right to seek development entitlements and to
subsequently acquire the Project Site, as more particularly set forth and subject to the terms and
conditions set forth in this Agreement.
L. The Parties further intend that this Agreement will supersede the terms and
conditions of the ENA.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein,
Alameda and APCP agree as follows:
ARTICLE L— PARTIES AND PROPERTY
Section 1.1 Parties. The teini "Party" shall mean any of the following: ARRA, CIC,
the City (collectively, "Alameda "), and APCP. The term "Parties" shall mean Alameda and
APCP, collectively.
Section 1.2 Project Site. The Project Site is described generally in Recital B.
(a) Excluded Portions. Certain parcels and improvements that are located
within the boundaries of the Project Site and/or the boundaries of NAS /Alameda will be
excluded from the final Project Site to be conveyed to APCP ( "Excluded Portions "). The final
boundaries of the Excluded Portions and the Project Site will be determined during the
negotiations for the DDA and are subject to final approval by the City and ARRA. The Parties
will use their `Best Efforts" (as defined in Section 14.8 below) to finalize such boundaries prior
to Completion of the ARRA Funded Predevelopment Period. However, APCP acknowledges
that Alameda may not be able to finalize all such boundaries by that time. It is anticipated that
the Excluded Portions will include some or all of the following:
( "AUSD ").
(i) Building One (City Hall West).
(ii) Land to be transferred to the Alameda Unified School District
(iii) Sports Complex Parcel.
(iv) Fire Station.
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(v) Alameda Point Collaborative land and improvements.
(vi) Affordable housing owned by the City's Housing or a third party
non - profit organization.
(vii) Maintenance Yard. (The Parties acknowledge that the boundaries
of the Maintenance Yard likely cannot be determined until approval of the DDA.)
(viii) Any public parks, open spaces, public trails, medians; transit and
transit facility, street, and utility rights of way (including detention/retention basins); public
parking rights of way, and other similar public or community facilities within the Project Site to
the extent the DDA provides that those Project elements will be retained by Alameda.
(b) Use Desianations. For convenience of reference, portions of the Project
Site will also be referred to in this Agreement based on the potential planned uses for different
areas of the Project Site. These use designations are preliminarily indicated in the map attached
hereto as Attachment 2, include the following:
"Adaptive Reuse Area."
"New Commercial Area"
"Residential Area"
In this Agreement, the term "New Development Area" means the New Commercial Area and
the Residential Area, collectively.
(c) Trust Area. As of the Effective Date, certain portions of the Project Site
are subject to the Public Trust. Pursuant to SB 2049, Chapter 734 of the Statutes of 2000, and
upon approval by the State Lands Commission, the configuration of the Public Trust on the
Project Site will change in that portions of that land will be freed from the Public Trust and the
Public Trust will be imposed on other lands. The Parties agree to use their Best Efforts to
reconfigure the Trust Area so that the location of this post - exchange configuration of the Public
Trust will be in the approximate location shown on Attachment 3 to this Agreement ( "Trust
Area "). Pursuant to applicable State law, the Trust Area can only be leased, but not deeded, as
more particularly set forth in Section 5.8(b) below.
ARTICLE II - TERM
Section 2.1 Term. The term of this Agreement ( "Term ") shall be as follows:
(a) Initia1 Term. The initial term of this Agreement shall commence as of the
Execution Date shown in the initial paragraph of this Agreement and shall continue until
eighteen (18) months following completion of the ARRA- Funded Predevelopment Period (as
defined in Article VI below) ( "Initial Tenn"). The Initial Teiui may be extended as provided in
Section 2.1(b) below. Notwithstanding the foregoing, however, if APCP fails to satisfy the
conditions set forth in Sections 5.5 and 7.3 on a timely basis, this Agreement shall be null and
void and of no force and effect and the ENA shall be revived and no longer superseded and
Alameda shall have the right to give written notice to APCP to such effect.
(b) Extension of Term. At the written request of APCP, the Executive
Director of ARRA, and the Executive Director of the CIC, and the City Manager shall
collectively approve in writing one one -year extension of the Initial Term ( "Extended Term "),
provided that at the time of such request: (1) No Event of Default (as defined in Section 11.1
below) with respect to APCP then exists and remains uncured; and (2) APCP has submitted
applications reasonably determined by Alameda to be complete which, if approved, would (a)
permit APCP to commence construction of an initial phase of development in the Project Site;
and (b) allow Alameda to issue those Project -wide approvals necessary to support the initial
phase, and issue a Notice of Preparation for an EIR. adequate for the initial phase of the project .
Such applications likely will include a master subdivision map for the Project Site, and a
preliminary development plan and small -lot Tentative Subdivision Map for the initial phase.
(c) Extensions for Certain Delays. The Term will be further extended for a
maximum period of one additional year for delays in performing the Parties' obligations under
this Agreement that are caused by (1) litigation instituted by third parties, (2) the acts or failure
to act of third party governmental agencies, or (3) early termination of the ARRA Funded
Predevelopment Period under Section 6.3. An extension of time for any such cause shall only be
for the period of the enforced delay, which period shall commence to run from the
commencement of the cause; provided, however, if notice by the Party claiming such cause is
sent to the other Parties more than thirty (30) days after the commencement of the cause, the
period shall commence to run only thirty (30) days prior to the giving of such notice; and
provided, further, that failure to give such notice shall not extend the maximum period of delay
beyond one year from the actual commencement of the cause.
Section 2.2
of the following:
(a) A non - defaulting Party gives notice to the defaulting Party of the
occurrence of an Event of Default (as defined in Article XI below) and any cure period expires
without such cure occurring;
Termination. This Agreement shall tenninate upon the occurrence of any
(b) APCP determines, in its sole discretion, to terminate this Agreement and
provides at least sixty (60) days' prior written notice to Alameda.
(c) The Initial Tenn or the Extended Term, if any, expires as provided in
Section 2.1 above.
(d) APCP fails to make an election to proceed pursuant to Section 4.4 hereof.
ARTICLE III
CONDITIONAL OPTION, EXERCISE, CONDITIONS, EFFECTIVENESS
Section 3.1 Grant of Conditional Option. Alameda hereby grants to APCP a
conditional option as more specifically described below to acquire the entire Project Site (less
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Excluded Portions) by deed, lease (for the Trust Area only) or lease in furtherance of conveyance
(for the Adaptive Reuse Area only)( "Conditional Option "), subject to and on all the terms and
conditions set forth herein.
Section 3.2 Exercise of Conditional Option by APCP. APCP shall exercise the
Conditional Option by executing a DDA and a Development Agreement ( "DA ") which shall
have been negotiated among the Parties pursuant to the terms of this Agreement and submitting
the DDA and the DA to Alameda for approval and adoption and execution.
Section 3.3 Conditions Precedent to Conditional Option becoming Effective. The
exercise by APCP of the Conditional Option granted herein shall become effective upon, and
only upon, the occurrence or completion of the following conditions precedent:
(a) CEOA Comnliance. Preparation and adoption by Alameda of an
Environmental Impact Report sufficient under the California Environmental Quality Act
( "CEQA ") to allow Alameda to approve applications necessary for development of an initial
phase of the Project and any approvals for the entire Project necessary to develop such initial
phase; and preparation and adoption of a Mitigation Monitoring Plan and Findings, all as
required CEQA. The EIR shall analyze the impacts (direct and cumulative) of such approvals,
examine alternatives and set forth mitigation measures;.
(b) DDA and Entitlements. The approval, adoption, granting or execution by
Alameda, in the sole exercise of its discretion, of:
(i) A DDA executed by APCP, providing for purchase and sale (with
leases as applicable), and development of the Project Site that is consistent with this Agreement,
is consistent with and includes the terms set forth or referenced in Article VIII below, except to
the extent that such terms are modified by the mutual agreement of the Parties; provided,
however, that Alameda's discretion shall be limited in that Alameda may determine not to adopt
a DDA, but if Alameda does adopt a DDA, that DDA must be consistent with the terms of this
Agreement or with such terms that may have been modified by mutual agreement of the Parties.
(ii) A DA executed by APCP and the City as provided in Section 3.2,
providing for vesting of development rights for the Project Site consistent with the Project
approvals and entitlements, as contemplated by Government Code Sections 65864 et. -seq..
(iii) Any General Plan or Zoning Ordinance amendments necessary
Project -wide and for a first phase necessary to commence development of the Project.
(iv) A master tentative map for the subdivision of the Project Site into
large lots that will permit the acquisition of the Project Site in phases consistent with the DDA.
(v) A preliminary development plan and small lot tentative map for the
initial phase of the Project consistent with the DDA.
(c) Tidelands Trust Exchange. A Tidelands Trust exchange agreement or
similar agreement between Alameda and the State Lands Commission to implement the
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exchange of lands into and out of the Tidelands Trust ( "Tidelands Trust Exchange Agreement "),
pursuant to SB 2049, Chapter 734 of the Statutes of 2000.
(d) Transfer and Remediation Agreements. Negotiation and execution of
transfer and remediation agreements with the Navy that are acceptable to Alameda and APCP.
The Parties acknowledge that: (1) the structure of the remediation and Navy -ARRA transfer
process is unknown as of the Execution Date; (2) such structure may, upon final agreement
among the Navy, EPA, and ARRA, result in a phased sequence of FOSTs following certain
Navy remediation efforts or FOSETs over a period of time which allow for the desired
development of the Project Site; (3) with respect to such FOSTs or FOSETs, the Navy may
retain responsibility for certain remediation obligations within the Project Site, or responsibility
for various remediation tasks on certain portions of the Project Site may be allocated to Alameda
pursuant to an Environmental Services Cooperative Agreement ( "ESCA "). The provisions of
this Section 3.3(d) are to be interpreted consistent with the final agreements reached and/or
agreed upon concerning such early transfer and remediation process as of approval date of the
DDA. Such transfer and remediation agreements may include any or all of the following, to be
determined during the ARRA- Funded Predevelopment Period:
(i) Issuance by the United States Navy of a FOST(s) and/or a
FOSET(s) for a portion or all of the Project Site which is acceptable to Alameda and APCP, and,
in the case of a FOSET, the filing by the Navy of a Covenant Deferral Request with the
Administrator of the United States Environmental Protection Agency ( "EPA ") and the Governor
of the State of California ( "Governor ").
(ii) In the case of a FOSET, approval by the EPA, and concurrence by
the Governor, that the applicable portion of the Project Site is suitable for transfer prior to
completion of all remedial action pursuant to CERCLA section 120(h)(3)(C).
(iii) In the case of a FOSET where some portion of the Navy's
remediation obligation is undertaken by Alameda, execution by ARRA and the Navy of an
ESCA .
(iv) Agreement by APCP and Alameda on terms, included in the DDA
or other appropriate agreement, defining the roles, financial and other responsibilities of APCP, a
risk assumption entity, if any, and a remediation contractor, which terms shall include that
Alameda shall not assume responsibility for, guarantee or provide assurance of, performance or
payment for, or otherwise have contingent liability for, remediation related to the Project.
(v) ARRA approval in its sole discretion of insurance and financial
assurances procured by APCP related to remediation.
(e) Acceptance by APCP of the DDA Pro Forma (as defined in Section 5.2
below), which shall be incorporated into and made a part of the DDA; and
(f) The Post -DDA Business and the Post -DDA Financing Plan approved by
Alameda in the reasonable exercise of its discretion as further provided in Section 8.9.
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ARTICLE IV — ALAMEDA PRIORITY PUBLIC GOALS
Section 4.1 Alameda Priority Public Goals Defined. Alameda intends that any
development at the Project Site support public goals that, have and will continue to emerge and
evolve during the public approval process for the Project. Alameda retains all regulatory and
other authority necessary to ensure that final Project approvals reflect these public goals to the
maximum extent feasible, and to use its power to approve, deny or condition land use approvals
and permits to carry out that intent. In addition to the exercise of that authority, and without
waiving any of its powers, Alameda hereby determines, and APCP hereby acknowledges, that
certain of these public goals ( "Alameda Priority Public Goals ") are (1) known at of the
Execution Date of this Agreement, (2) of special and fundamental importance to Alameda and
(3) accordingly are treated in this Agreement as first priorities in the Initial and DDA Pro
Formas. ARRA would not enter into this Agreement unless such Alameda Priority Public Goals
were recognized as of paramount importance for purposes of this Agreement as provided herein.
Section 4.2 The following constitute Alameda Priority Public Goals for purposes of
this Agreement:
(a) The Project will be fiscally neutral to Alameda as provided in Section
4.3(a).
(b) The Project will include and will fund the development of certain public
amenities, the scope and estimated cost of which are defined preliminarily in Attachment 4
( "Public Amenities "). The Parties shall refine the list prior to the conclusion of the ARRA-
Funded Predevelopment Period. The Parties may agree that a portion of APCP's obligations may
include providing backbone infrastructure to serve the Excluded Portions.
(c) The Project will include, and will fund the Alameda NAS local share of
the cost of, a set of transportation improvements and mitigation measures that mitigate project
impacts on local and regional transportation networks in a manner acceptable to Alameda.
(d) Pursuant to Federal and State Law, and the terms implementing the
Economic Development Conveyance ( "EDC "), the Navy is fully responsible for any and all
actions necessary for remediation of toxic contamination on the Project Site; provided however,
if (1) pursuant to the agreements with the Navy described in Section 3.3(d), or (2) consistent with
the DDA, additional remediation work is necessary on or related to the Project Site, the Project
will provide for and fund the remediation of toxic or hazardous materials necessary to allow
development of the Project as provided in applicable plans and policies in a manner that provides
for the public health and safety. Neither the ARRA nor the City, nor any of their constituent
entities will have any present or contingent liability for environmental remediation on the site or
otherwise associated with the Project, except as provided in any agreements described in Section
3.3(d).
(e) The Project will comply with General Plan policies and standards
applicable or reasonably anticipated to be applicable at the time of adoption of the Project.
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Section 4.3 Treatment of Alameda Priority Public Goals in the Project Pro Forma.
The Initial and DDA Pro Formas shall address the Alameda Priority Public Goals as provided in
this Section.
(a) Fiscal Neutrality. The Parties acknowledge that as of the Execution Date,
revenues from Adaptive Reuse leasing activities, to the extent eligible under the LIFOC, provide
most of the funds to Alameda to operate and maintain NAS Alameda. These operations and
maintenance expenses generally include NAS Alameda's share of the ARRA Development
Services budget, reimbursements to the City General Fund for City department expenses for
NAS Alameda, property management expenses, project- related debt payments, and standard
municipal services costs to NAS Alameda, such as maintenance of roads, public buildings,
provision of water, and other municipal services to NAS Alameda, including services to the
Collaborative Area. The Parties further acknowledge that if, pursuant to a DDA, the Adaptive
Reuse Area is transferred to APCP, this financing situation will change such that the burden of
funding the expenses of operating and maintaining NAS Alameda will shift to a combination of
the General Fund, tax increment generated by the Project to the extent pledged by the CIC, and
ARRA revenue from land sales or leases to APCP. The schematic in Attachment 9 describes
both the current funding situation and an illustrative funding arrangement after transfer of.
Adaptive Reuse to APCP and commencement to development of the Project. The Alameda
Priority Public Goal of fiscal neutrality is designed to insure that the Initial and DDA Project Pro
Forma model test to determine if these various sources of funds -- project - related revenues to the
General Fund, revenues from land sales, and tax increment - -are sufficient to pay the costs of
operating and maintaining NAS Alameda. Upon exhausting all such sources of funding modeled
in the Project Pro Formas, if fiscal neutrality has not been met, the Project Pro Formas shall be
modeled to show an APCP- funded cost to the Project in an amount necessary to meet such goal,
which additional cost will result in a downward adjustment to APCP IRR calculated through the
Project Pro Formas (adjustments to the APCP IRR are subject to APCP's election pursuant to
Section 4.4). Specifically, with respect to Section 4.2(a), the Project Pro Formas shall model for
fiscal neutrality of NAS Alameda as provided herein with respect to (1) the City General Fund,
and (2) ARRA and the CIC.
(i) Fiscal Neutrality to the City General Fund. The Fiscal Model
Template contained in the Pro Forma Template provides that revenues generated by NAS
Alameda, such as sales taxes, property transfer taxes, property taxes, and similar revenues will
flow to the General Fund. The Fiscal Model Template measures fiscal neutrality by determining
the ability of those revenues to fund the operation and maintenance expenses incurred at NAS
Alameda assigned to the General Fund. Thus, for purposes of this section, fiscal neutrality to the
General Fund means that such direct annual General Fund revenues as listed in the Fiscal Model
Template are equal to or greater than the sum of the following annual General Fund expenses:
(A) Direct Annual General Fund Expenses required to serve
and facilitate the Project as identified in the Fiscal Impact Model Template;
(B) The additional operating costs (remaining after (A) above)
of Fire Station 5, City -owned buildings at NAS Alameda, and the Sports Complex, less the
portion of those costs allocated or to be allocated to the Fleet Industrial Supply Center project
( "FISC ") and other properties in NAS Alameda including, but not limited to, the golf course, A
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schedule of maximum annual expenses to be allocated to the Project for the foregoing additional
operating costs shall be established at the time that the Initial Pro Forma is prepared.
(C) Costs of (1) police and fire protection services for the
Collaborative Area and (2) public works expenses to maintain public rights of way in the
Collaborative Area, to the extent such costs are not funded by the Collaborative.
(ii) Fiscal Neutrality to ARRA and the CIC. ARRA and CIC revenues
from the Project consist of land sales (or long term leases) to APCP, and tax increment, to the
extent pledged by the CIC. Fiscal neutrality to ARRA and the CIC means that revenues to
ARRA from land sales revenues plus the annual net property tax increment generated by the
APCP Project and retained by the CIC and are equal to or greater than the ARRA/CIC expenses
as identified in the Fiscal Impact Model Template.
(iii) Pro Forma Hierarchy for Fiscal Neutrality. In modeling for fiscal
neutrality, the Initial Pro Forma shall utilize the following hierarchy:
(A) First Priority: With respect to General Fund fiscal
neutrality as set forth in paragraph (i) above, utilize as necessary NAS Alameda General Fund
revenues. With respect to ARRA and CIC fiscal neutrality as set forth in paragraph (ii) above,
utilize as necessary Project - generated net property tax increment.
(B) Second Priority: Apply as necessary ARRA land sales
revenues to fiscal neutrality until such revenues to ARRA area zero dollars.
(C) Third Priority: Add APCP- funded cost determined
pursuant to Section 4.3(a) to the development of the Project until fiscal neutrality is achieved,
which cost will result in a downward adjustment of the APCP IRR calculated through the Project
Pro Formas. In the event that payments from APCP (beyond land sales) will be required in order
to render the Project fiscally neutral, the schedule for APCP payments will be correlated with the
anticipated timing of the General Fund deficits. Payments will not extend beyond the build -out
of the Project.
(b) The expenditures associated with development of the Public Amenities
(up to the maximums provided in Attachment 4 for the Public Amenities as such maximums
may be modified pursuant to Section 5.2(a)(ix), or as otherwise agreed to by the Parties in
preparing the Project Pro Formas) and the expenditures associated with funding the Alameda
Priority Public Goals set forth in Sections 4.1(c), (d), and (e) shall be treated as project expenses
or otherwise supported or financed entirely from the Project pursuant to the hierarchy established
pursuant to Section 5.1(g) below.
(c) The Project Pro Formas will model the implementation of the Alameda
Priority Public Goals such that, to the extent consistent with the underlying purposes of the those
goals, the timing of expenditures avoids adverse affects to the financial performance of the
Project.
Section 4.4 Election. Prior to the conclusion of the ARRA-Funded Predevelopment
Period, the parties shall make a determination as to whether the Project, including the Alameda
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Priority Public Goals, provides an IRR equal to 22.5 percent as defined herein (that is, projected
to "perform ") or provides an IRR of less than 22.5 percent as defined herein or below (that is
projected to "under- perform "). If the Initial Pro Forma defines a Project that under - performs,
within sixty (60) days of the conclusion of the ARRA- Funded Predevelopment Period, APCP
shall communicate in writing to ARRA whether or not it intends to 1) terminate this Agreement
or 2) proceed forward subject to the provisions of this Agreement despite the lower IRR
indicated in the Initial Pro - Forma. While the parties recognize that the Project as analyzed in the
DDA Pro Forma or the Project as implemented may perform better or worse than projected in the
Initial Pro Forma, an APCP election to proceed constitutes a determination to continue forward
subject to the provisions of this Agreement on the basis of a Project which includes the Alameda
Priority Public Goals that may perform or under- perform.
ARTICLE V
FINANCIAL TERMS FOR THE ACQUISITION OF THE PROJECT SITE
Section 5.1 Initial Pro Foiiiia
(a) Purpose of Initial Pro Forma.
(i) This Article V provides for two Pro Formas, an Initial Pro Forma
and a DDA Pro Forma (collectively, the "Project Pro Formas "). The Initial Pro Forma, to be
developed during the ARRA- Funded Predevelopment Period, will establish a preliminary
financial model for the Project and a preliminary land price, as well as form the basis for the
election by APCP pursuant to Section 4.4 of whether to proceed. The Initial Pro Forma will be
revised thereafter during the DDA negotiations as provided in Section 5.2 below to establish the
DDA Pro Forma, a final financial model for the Project and the land price to be used in the
DDA.
(ii) Prior to the end of the ARRA- Funded Predevelopment Period, the
Parties will collaborate to develop a financial model related to the development, purchase, lease
and fiscal impact of the Project based on the Adaptive Reuse, New Commercial and Residential
Area uses ( "Initial Pro Forma ") utilizing the template pro forma format developed by ARRA
(through its economic /financial consultant and as revised with APCP) ( "Pro Forma Template ").
The Pro Fauna Template, dated October 7, 2003, is on file at ARRA. The Initial Pro Forma will
define a relationship among income, expenses, specified internal rate of return and resulting land
price and will utilize customary land residual methodology.
(b) Data Inputs to the Initial Pro Forma. Prior to the Execution Date of this
Agreement, the Parties have invested time and financial resources in developing data inputs for
the Pro Forma Template that will be used, if applicable, in developing the Initial Pro Forma.
These include revenues from land sales, product sales, and rents, Qualified Predevelopment
Expenditures, and infrastructure costs, costs of Public Amenities and the costs of other Alameda
Priority Public Goals, all of which will be adjusted on the basis of information and forecasts
applicable at the time the Initial Pro Forma is developed. The inputs to the Initial Pro Forma will
also reflect the outcome of the Navy negotiations and conveyance plan, technical studies and
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other land use factors determined by the parties during the ARRA Funded Predevelopment
Period. The Initial Pro Forma will include a Fiscal Impact Model Template that will estimate
project and non- project net general fund impacts. The Initial Pro Forma will also include a Tax
Increment Model that will estimate tax increment revenue that will be generated as a result of the
Project, and will specify preliminarily the amount of tax increment that the CIC will make
available to the Project.
(c) Data Input by Land Use.
(i) With regard to the New Residential Area, the lot residual analysis
will utilize a residential value analysis prepared at such time by a new home marketing
consultant such as the Ryness Company, Susan State and Assoc., Carol Lind and Assoc. or
another similar company agreed mutually upon by the Parties, using comparable sales analyses.
(ii) With regard to New Commercial Area, a comparable analysis of
values for similarly situated unimproved real property designated for similar commercial
development (with base infrastructure brought to parcel boundary or curb cut, excluding parcel
in -tract infrastructure) will be used.
(iii) With regard to the Adaptive Reuse Area, the Initial Pro Forma is
anticipated to be substantially similar to the Pro Forma Template. The Pro Foima Template
includes a building -by- building analysis of improvements, lease up, and sale. The nature of
adaptive reuse requires flexibility to respond to specific tenant needs, and as such, the exact
nature of the improvements and tenant mix can not be pre - determined. The Pro Forma Template
provides for inputs representing "best guess" assumptions on improvement costs, lease up, and
sales values and dates to establish an approximate contribution to the value of the Project. It is
anticipated that this methodology will continue to be applicable in the Initial Pro Foima, with
updates as necessary.
(d) Land Use Program. The Initial Pro Forma will take into consideration a
land use program consistent with the Preliminary Development Concept produced during the
ARRA- Funded Predevelopment Period.
(e) Public Goals. The Initial Pro Forma shall include Alameda Priority Public
Goals as costs of the Project or otherwise funded by the Project as provided in Section 4.3.
(f) APCP IRR. The Initial Pro Forma will initially be based on an IRR to
APCP of 22.5 %; provided, however, subject to APCP's termination rights, the achievement of
the specified IRR shall be subordinate to achieving the Alameda Priority Public Goals. The
Parties acknowledge that the updated financial inputs to the DDA Pro Forma may result in a
higher land value if an IRR of 22.5% is achieved or an IRR of less than 22.5% if the land value
is zero or less.
(g) Initial Pro Foima Hierarchy . The Initial Pro Forma shall be based on the
following priorities:
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(i) The first and paramount priority is to provide for the Alameda
Priority Public Goals and the payment of any existing indebtedness incurred by Alameda on the
Project Site. This priority is not contingent on achieving the APCP IRR of 22.5 %.
(ii) Second priority is achievement of a APCP IRR of 22.5 %.
(iii) Third priority is residual value to be received by ARRA in land
sale proceeds.
Thus, the receipt of land sale proceeds by ARRA is subordinate to the APCP IRR of 22.5 %. If
the Initial Pro Forma does not produce a positive residual value at the APCP IRR of 22.5 %, the
residual land value will be set at zero. The APCP IRR then will be estimated using the Initial Pro
Forma with a residual land value set to zero; provided, however, that using such estimated APCP
IRR for purposes of the Initial Pro Folina does not change the 22.5% APCP IRR for the purpose
of determining land value in the DDA Pro Forma or for determining ARRA Profit Participation
pursuant to Section 5.4.
Section 5.2 DDA Project Pro Forma
(a) If, after review of the Tnitial Pro Forma, APCP has elected to proceed with
the Project pursuant to Section 4.4, then during negotiations for the DDA, the Parties shall
collaborate to develop a DDA Pro Forma updated and revised from the Initial Pro Forma to
establish the land price for the Residential and New Commercial Areas, the lease rate for the
Trust Area and the lease rate and the land price in the Convertible Ground Lease for the
Adaptive Reuse Area. The DDA Pro Forma shall reflect the hierarchy in Section 5.1(g) above,
and will be updated and revised by the Parties for the following:
(i) Values, income and expenses utilized in formulating the lot
residual analysis for the Residential Area.
(ii) Adjustments to comparable values utilized to establish pricing for
the. Commercial Area.
(iii) Adjustments to the income and expense inputs for Adaptive Reuse
based upon the increase to the consumer price index from the time of preparing the Initial Pro
Forma to current, unless material changes in economic circumstances require other adjustments.
(iv) Adjustments to the land use program.
(v) Updated infrastructure costs.
(vi) Timing adjustments to revise for the time parameters assumed in
the Initial Pro Fauna for the receipt of revenues and income and expense associated with
development and disposition of the Project Site.
(vii) Updated and/or new environmental remediation costs.
(viii) Public funding irrevocably committed to the Project.
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(ix) Re- costing of Alameda Priority Public Goals, provided that such
goals are the same as those listed in the CAA or as modified during the ARRA- Funded
Predevelopment Period.
the DDA.
(x) APCP Qualified Predevelopment Expenditures incurred prior to
Section 5.3 Tolling of IRR on Predevelopment Costs. The IRR on predevelopment
expenditures (including APCP expenses incurred between selection and the Execution Date) will
cease to accrue during the ARRA- Funded Predevelopment Period and will recommence when
APCP elects to proceed under Section 4.4.
Section 5.4 Profit Participation.
(a) Kev Provisions of ARRA Profit Participation. ARRA will be entitled to
profit participation ( "ARRA Profit Participation ") from the Project on the following basis:
(i) Profits shall be split fifty /fifty (50/50) between APCP and ARRA
for amounts received by APCP in excess of an IRR of 22.5 %.
(ii) One -half of the ARRA Profit Participation shall be paid upon
disposition by APCP of one -half of the residential lot acreage in the Project, based upon actual
expenses incurred and income received by APCP at such time. At the earlier to occur of (a)
disposition of all of the Project, (b) termination of the DDA, or (c) ten (10) years after execution
of the DDA, the ARRA Profit Participation shall be recalculated based upon the actual expenses
incurred and income received by APCP, and APCP shall fund such calculated ARRA Profit
Participation (less previously funded ARRA Profit Participation) to ARRA.
(iii) If the DDA is terminated at any time prior to completion of the
Project, APCP will pay ARRA immediately all amounts received by APCP in excess of a 22.5%
IRR unless such teiniination results from (A) mutual agreement between ARRA and APCP or
(B) a default by ARRA or (C) a force majeure event that would render it impossible to proceed
with the Project in accordance with the DDA.
(iv) APCP will furnish to ARRA guaranties from its constituent
members or the parent companies of its constituent members (if the constituent members not are
the parent companies) guarantying the obligations of APCP to pay the amounts described in (ii)
and (iii) above.
(v) APCP will have agreements with its members or affiliates of
members that acquire the lots for development and construction of residences that will (1)
establish a price using a land residual methodology similar to that described in Section 5.1(c)(i)
and (2) provide for sharing with APCP of at least 50% of actual profits received by such
members of affiliates of members above an eight percent (8 %) profit margin, based on profits
from the sale of all completed residences made by such members or affiliates of members.
APCP and ARRA acknowledge that sales of residential lots to third party developers may
include participation in certain revenues. Amounts received by APCP pursuant to these
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participation agreements will be included in determining APCP's IRR and ARRA's right to
participate in APCP's profits over a 22.5% IRR.
(b) Adaptive Reuse Profit Participation. The parties acknowledge that the
general principles of Sections 5.4(a)(i) -(iv) also shall apply to the Adaptive Reuse Area;
provided, however, that determining the mechanisms for ARRA Profit Participation in the
Adaptive Reuse Area may involve additional complexities which will be addressed in the DDA.
(c) Depnjtiop, for Purpose of Detpiiining IRR.
(i) "Development Costs" means those costs and expenses paid and/or
incurred by APCP during the development term, which shall be treated as commencing on
September 1, 2001 that are determined during the DDA negotiations to be eligible development
and predevelopment costs incurred by APCP to acquire, own, hold, entitle, develop, construct or
sell all or any part of the Project. Development Costs shall exclude (i) the repayment of the
principal and interest of any non - public financed loan obtained by APCP; (ii) any distributions,
preferred return or other capital return to the members of APCP; and (iii) any costs funded by
public financed loans.
(ii) "Gross Cash Receipts" means all cash revenues received by APCP
from any source whatsoever in connection with the sale, exchange or disposition of all or any
part of the Project. Gross Cash Receipts do not include the proceeds of any capital contributed to
APCP by its members.
(iii) "Unleveraged Cash Flow" means Gross Cash Receipts received by
APCP (excluding amounts paid to ARRA for the ARRA Profit Participation) less Development
Costs paid by APCP.
"IRR" means the annual percentage internal rate of return that shall be calculated on the
Unleveraged Cash Flow for each quarter using a quarterly internal rate of return factor. The
annual rate of return is calculated on quarterly cash flows by adjusting the rate of return
calculated using the annual internal rate of return formula in Excel and adjusting it to quarterly
cash flows using an appropriate formula. All references to "IRR" in this Agreement shall refer
to an internal rate of return calculated on an unleveraged basis. The use of the term "unleveraged
basis" shall generally mean that any third party loan proceeds (excluding public financed loan
proceeds) obtained by APCP, either secured or unsecured, shall not be included as cash revenue
received by APCP, nor shall such loan proceeds offset costs incurred by APCP, but rather shall
be treated as capital invested by APCP for the purpose of the APCP IRR.
(iv) Calculation of the APCP IRR is subject to, and shall be modified
by, the tolling period applicable to APCP's IRR set forth in Section 5.3 above.
Section 5.5 $500,000 Reimlpursement Pavxpent. As of September 30, 2003 APCP
owed a reimbursement payment of Five Hundred Thousand Dollars ($500,000) to ARRA under
the terms of the ENA. APCP paid Two Hundred Fifty Thousand Dollars ($250,000) of this
amount on October 8, 2003. The Parties have agreed that the remaining Two Hundred Fifty
Thousand Dollars ($250,000) shall become due payable upon approval of this Agreement by the
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ARRA Board and execution by ARRA. APCP shall make payment within five (5) business days
thereafter and timely payment shall be a condition precedent to the effectiveness of this
Agreement. In consideration of the payment of the initial $250,000, ARRA has agreed to
suspend APCP's financial obligations under the ENA.
Section 5.6 Convertible Ground Lease for Adaptive Reuse. Prior to execution of the
DDA, the parties shall reach agreement upon terms, conditions and final provisions of a long-
term ground lease for the Adaptive Reuse Area that provides for the conversion of such
leasehold interest into fee title ownership in favor of APCP upon the satisfaction of certain
specified conditions ( "Convertible Ground Lease for Adaptive Reuse "). Attachment 5 contains
the material terms of Convertible Ground Lease for Adaptive Reuse and the final Convertible
Ground Lease for Adaptive Reuse shall be consistent with Attachment 5.
Section 5.7 Adiust,ents after Execution of DDA. The land price for the Residential
and New Commercial Areas, the lease rate for the Trust Area and the conversion price for
Adaptive Reuse Area shall contain an escalator applying the Alameda Investment Rate for the
period between the prescribed date for transfer set forth in the DDA Pro Forma and APCP's,
actual payment dates.
Section 5.8 Tidelands Trust Leases
(a) Trust Exchange Agreement. The Parties recognize that implementation
of the Development Project on the Project Site requires the Tidelands Trust exchange
contemplated in SB 2049, Chapter 734 of the Statutes of 2000 (the "Alameda Trust Grant ") and
agree to use Best Efforts to undertake all actions necessary to implement that legislation.
(b) Public Trust. The Parties acknowledge that those lands in the Project Site
which fall within the footprint post- exchange Public Trust ( "the Trust Area ") must be utilized in
a manner consistent with the Trust and the Alameda Trust Grant, and that such Trust Area may
be the subject of a long term lease, but may never be sold into private ownership.
(c) Trust Area Leases. Prior to execution of a DDA, the Parties shall agree
upon terms and conditions of long- term leases for those portions of the Trust Area which fall
within the Adaptive Reuse Area. Those lease, to the extent permitted by law and the Alameda's
trustee obligations, shall (i) be for the maximum term permitted by the Alameda Trust Grant and
(ii) parallel and integrate with the terms of the adjacent long term Adaptive Reuse Lease.
ARTICLE VI - ARRA- FUNDED PREDEVELOPMENT PERIOD.
Section 6.1 ARRA- Funded Predevelopment Period. Commencing in October, 2003,
ARRA will fund and carry out the following described predevelopment activities, as summarized
in the Summary Matrix attached as Attachment 6 and a business plan for the ARRA- Funded
Development Period pursuant to the Core Group process described in Section 7.6 until the earlier
of (a) the date such activities are complete or (b) the date the ARRA has spent $3.5 million or
has elected to extend the period as set forth in Section 6.2:
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(a) The preparation and acceptance by Alameda of a planning document
( "Preliminary Development Concept ") that results in a conceptual development program that
conforms to the physical, economic, and environmental constraints of NAS Alameda, including
the Project Site, and also fulfills the public goals for development of the Project Site which are
set forth in the Alameda General Plan and the Alameda Point Reuse Plan.
(b) The negotiation of a Disposal Strategy with the U.S. Navy that is
sufficient to implement at least the initial phase of the Preliminary Development Concept.
Section 6.2 Extension of the ARRA- Funded Predevelopment Period. If after the
expenditure of $3.5 million, the above activities are not complete, ARRA may, in the exercise of
its sole and absolute discretion, elect to continue the ARRA- Funded Predevelopment Period and
expend the funds necessary for the continued planning and Navy negotiations, until either the
tasks in Section 6.1 are complete or until ARRA elects to stop work and transfer the obligations
to carry out predevelopment activities back to APCP as set forth in Section 6.3.
Section 6.3 Completion or Termination of the ARRA- Funded Predevelopment Period;
Transfer of Resno»sil?ility Back to APCP. Upon the completion of the term of the ARRA-
Funded Predevelopment Period, subject to APCP's election under Section 4.4, the obligation to
fund and carry out predevelopment activities shall be APCP's obligation, at which time APCP
shall resume predevelopment funding. APCP and ARRA shall negotiate a predevelopment
budget to cover the period going forward for both parties which shall include ARRA cost
recovery in an amount sufficient to allow ARRA to perform its obligations under this Agreement
and to negotiate applicable project documents and payments and shall be made in advance on a
quarterly basis. Subject to APCP's election under Section 4.4, nothing in this section shall
excuse APCP from any requirement to fund the expedited processing of any development
entitlement other than the Preliminary Development Concept as described in Section 6.1. ARRA
may, in the reasonable exercise of its discretion, terminate the ARRA- Funded Predevelopment
Period prior to its expenditure of $3.5 million in the event conditions beyond its control,
including but not limited to third party agency action or litigation, render the expenditure of the
funds or progress towards the activities in Section 6.1 infeasible. Such termination shall operate
as a completion of the teiui of the ARRA- Funded Predevelopment Period.
Section 6.4 ARRA Role and Duties during the ARRA- Funded Predevelopment
Period. With the advice and consultation of APCP as described in Section 6.5, during the ARRA-
Funded Predevelopment Period, the ARRA shall carry out, through its staff or consultants, the
work required to prepare the Preliminary Development Concept, negotiate the Disposal Strategy,
select and contract with all consultants required to carry out this effort, prioritize the essential
tasks, negotiate the scopes of work for all such consultants, and manage their contracts and day -
to -day activities. The work - product of all such consultants shall belong to ARRA.
Section 6.5 APCP Role and Duties during the ARRA- Funded Predevelonment Period.
APCP and ARRA agree to cooperate in the preparation of the Preliminary Development Concept
and the negotiation of the Disposal Strategy with the Navy as set forth in this Section. The
parties have agreed on an APCP budget for such expenditures attached hereto as Attachment 7
( "APCP Interim Budget "). APCP expenditures in excess of the APCP Interim Budget may not
17
be charged to the Project as Qualified Predevelopment Costs, unless APCP obtains prior ARRA
approval for such additional costs.
(a) During the ARRA- Funded Predevelopment Period, APCP shall consult
with and advise ARRA and its consultants as provided herein, and ARRA shall reasonably
consider such advice. APCP shall fund the necessary staff and consultants as provided in the
APCP Interim Budget required to enable it to participate effectively in this consultation process
and advise the ARRA as to its interests in the Preliminary Development Concept and the
negotiation of the Disposal Strategy.
(b) The parties intend that ARRA and APCP work collaboratively during the
term of this Agreement, and that during the ARRA- Funded Predevelopment Period, APCP will
be an active participant in an ARRA- directed process. To implement this intent, APCP shall
participate in the planning and negotiation as follows: Upon ARRA approval, which shall not be
unreasonably withheld, APCP shall participate in the development of consultant RFPs, attend
consultant interviews, participate in the selection and review the scope of work . of consultants
involved in the preparation of the Preliminary Development Concept and the Navy negotiations,
and attend meetings with consultants; provided however that APCP does not have the right to
attend internal ARRA staff meetings, or meetings with the Cost Recovery consultants, including
but not limited to attorneys and development consultants. Upon ARRA approval, which shall
not be unreasonably withheld, APCP may attend significant negotiation sessions with the Navy,
regulatory agencies and other third party entities. Notwithstanding the foregoing participation
provisions, however, final decisions regarding the items in this Section remain at the sole and
absolute discretion of ARRA, and ARRA retains the absolute right to occasionally meet or to
communicate with the consultants, the Navy, regulatory agencies or other third party entities
without the presence of APCP; provided that any material directions or decisions will be referred
to the Core Group (as defined in Section 7.6(a)). During the term of this Agreement, APCP will
not unilaterally contact, orally or in writing, directly or though third parties, such consultants, the
Navy, regulatory agencies, or other third party entities with regard to NAS Alameda, including
the Project Site
ARTICLE VII OBLIGATIONS OF THE PARTIES DURING TERM OF CAA
Section 7.1 Proiect Entitlements and Related Agreements
(a) Agreement Not an Entitlement. The Parties acknowledge that this
Agreement is not a plan, permit or entitlement of any kind and does not grant or otherwise,
directly or indirectly, give rise to development rights or rights to entitlements or permits with
respect to the Project Site. Such rights would arise through adoption by Alameda of such plans,
entitlements or permits after notice and hearing through the lawful exercise of its discretion.
Nothing in this Agreement commits Alameda to adopt a plan or approve any entitlement for the
project.
(b) Disposal Strategy with Navy and Remediation. Following the Completion
of the ARRA- Funded Predevelopment Period, ARRA and APCP will continue with their
18
respective roles and duties described in Sections 6.4 and 6.5 above; provided however that APCP
shall have funding responsibility to fund the APCP Interim Budget.
(c) Diligent Processing. Following Completion of the ARRA- Funded
Predevelopment period, and subject to APCP's election to proceed under Section 4.4, APCP
shall with due diligence pursue and fund all government approvals and permits necessary for
development of the Project Site and shall prepare all of the planning, environmental review and
other studies necessary for the City to enter into and/or consider for approval at least the
agreements, documents and permits set forth in Section 3.3, including any and all Project -wide
approvals necessary to allow development of the Project and a Development Plan and small lot
Tentative Map for the initial phase of the Project. Alameda shall utilize due diligence to assist
APCP in preparing and processing such entitlements and in negotiating and entering into
agreements.
(d) Milestone Schedule. Prior to Completion of the ARRA- Funded
Predevelopment Period and as a condition to APCP's election to proceed under Section 4.4,
APCP shall prepare at its cost and submit for ARRA approval, not to be unreasonably withheld,
a schedule for accomplishing the tasks necessary to complete the documents, public
participation, and processing of the planning, entitlements, and CEQA documents which will
allow development of an initial phase of the Project and to finalize a DDA prior to the end of the
Initial Term hereof.
(e) Pre -DDA Obligations with respect to Business Plan and Budget. Prior to
Completion of the ARRA- Funded Predevelopment Period and as a condition to APCP's election
to,proceed under Section 4.4, APCP shall prepare at its cost and submit for ARRA approval, not
to be unreasonably withheld when all required information has been submitted, a business plan
( "Business Plan") and a pre -DDA budget ( "Pre -DDA Budget "). APCP shall obtain funds in the
amount, time and manner set forth in the Pre -DDA Budget as necessary to carry out its
obligations under this Agreement.
Section 7.2 Expedited Processing Agreement and Cost Recovery. Prior to Completion
of the ARRA- Funded Predevelopment Period and as a condition to APCP's election to proceed
under Section 4.4, APCP and Alameda shall enter into a cost recovery agreement ( "Cost
Recovery Agreement ") and an expedited processing agreement ( "Expedited Processing
Agreement ") setting forth the obligations of APCP for payments to Alameda for cost recovery,
both for costs incurred by Alameda in carrying out its obligations in furtherance of this
Agreement as well as costs for processing APCP's applications for entitlements in accordance
with the Expedited Processing Agreement.
Section 7.3 Delivery of Documents and Reports. During the term of this Agreement,
consultant work product owned by each Party shall be available to the other. Consultant work
product related to development of the Project Site prepared for APCP or under APCP direction
prior to the execution of this Agreement, which APCP owns, shall be made available to ARRA
in electronic form (or hard form if electronic form is not available) as a condition to this
Agreement becoming effective. Set forth in Attachment 8 is a list summarizing the scope and
content of such work product. If APCP does not have the rights to such material, APCP shall
provide diligent and reasonable assistance (at no out of pocket cost to APCP other than staff or
19
principal time) to ARRA in obtaining such rights; provided, however, that such assistance shall
not be a condition to the effectiveness of this Agreement. APCP shall make available to ARRA,
a hard copy and an electronic version of the last concept plan prepared by or for APCP prior to
Alameda's approval of this Agreement to the extent owned by APCP, including pursuant to a
license agreement or other similar agreement giving the right to use such plan. Consultant work
under this section shall not include work subject to attorney - client privilege or proprietary
financial information.
Section 7.4 APCP Predevelopment Obligations and Expenditures Limitations.
(a) APCP Predevelopment Expenditure Obligation. Except as provided
herein during the ARRA- Funded Predevelopment Period and subject to APCP's election under
Section 4.4, APCP shall make the Qualified Predevelopment Expenditures reasonably necessary
to provide for and (1) fund its staff and consultants required to perform the planning and
permitting of the Project and the negotiation of associated documents; and (2) fund ARRA and
City costs as specified in the Cost Recovery Agreement and the Expedited Processing
Agreements.
(b) Qualified Predevelopment Expenditures. Qualified Predevelopment
Expenditures consist of commercially reasonable expenditures made by APCP from the time of
ARRA selection of APCP as master developer (August 30, 2001) until approval by ARRA of a
DDA for all or part of the Project for:
(i) Work by those personnel operating as APCP staff in performing
APCP's obligations under this Agreement, including, but not limited to, planning, permitting,
and negotiation efforts directly related to the Project Site, APCP's consultation role during the
ARRA- Funded Predevelopment Period, and providing information to APCP's constituent
members.
(ii) Consultants performing functions directly related to the tasks in
subparagraph (i) above.
(iii) Payments made to ARRA or the City under the Cost Recovery
Agreement and the Expedited Processing Agreement.
(c) Exclusion from Qualified Predevelopment Expenditures
Notwithstanding the foregoing, expenditures for the following activities are not Qualified
Predevelopment Expenditures:
(i) Political contributions of any kind.
(ii) Contributions to community organizations or other good -will
activities unless such activities relate directly to providing information about the Project. For
example, a contribution to a local service organization would not quality. A community
presentation of the project status, or a newsletter concerning the Project would qualify.
20
(iii) All activities of the officers, employees, or consultants of APCP's
constituent members, including, but not limited to those activities undertaken to form or maintain
the limited liability company , negotiate or renegotiate its terms, participate in or support
partnership meetings, or otherwise to serve the members, or any other member activities except
those involving acting as staff to APCP as described in Section 7.4(b) above.
(iv) Expenses incurred prior to the date of selection (August 30, 2001).
(v) Expenses undertaken pursuant to or to implement the Property
Management Agreement.
(d) Audit. Predevelopment expenses will be audited (1) within thirty (30)
days of adoption of this Agreement, (2) at the time of agreement on an Initial Pro Forma, and (3)
prior to DDA adoption all at APCP's expense as provided herein. It is the responsibility of
APCP to maintain records of such expenses in a form, which will allow the auditor to determine
if such expenses are Qualified Predevelopment Expenditures. In the absence of such information
concerning an expenditure, the expenditure will be deemed not to be a Qualified Predevelopment
Expenditure.
Section 7.5 Quarterly Accountine. Within thirty (30) days after the end of each quarter
during the Tenn of this Agreement, APCP shall provide ARRA with a report ( "APCP Quarterly
Predevelopment Expense Report") summarizing (i) the actual expenses incurred and allocated to
the expense categories which permit an effective audit pursuant to Section 7.4(d) (including
supporting invoices evidencing such expenses) from the Execution Date of this Agreement
through the issuance date of such report; (ii) the variance analysis between the actual
expenditures and the APCP Interim Budget or the APCP Pre -DDA Budget, and (iii) any
proposed revisions to the budgeted expenses within the APCP Interim Budget or the Pre -DDA
Budget for the remaining period until the anticipated date of the DDA. The first APCP
Quarterly Predevelopment Expense Report shall be due January 31, 2004.
Section 7.6 Core Group.
(a) ARRA and APCP agree that they shall mutually constitute a limited group
of APCP and ARRA representatives (hereinafter the "Core Group ") to meet and confer regarding
all activities required to complete the Preliminary Development Concept and negotiate the
Disposal Strategy with the Navy. The Core Group shall endeavor to reach consensus on all
decisions related to the preparation of the Preliminary Development Concept and the negotiation
of the Disposal Strategy. However, subject to the dispute resolution process described below,
which shall apply solely to disputes arising out of this Section 7.6, all decisions regarding the
preparation of the Preliminary Development Concept or the negotiation of the Disposal Strategy,
ARRA shall have the sole and absolute discretion to make any and all decisions.
(b) If consensus cannot be reached in the Core Group, the matter shall be
referred to the City Manager and an assigned principal from APCP for resolution. In the event
these two fail to agree, the City Manager shall make the final determination.
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ARTICLE VIII -KEY TERMS TO BE INCLUDED IN DDA
Section 8.1 Agreement Confers No Right to a DDA. This Agreement is not a DDA
and confers no rights to a DDA or any Alameda entitlement to APCP or any other party or entity.
Alameda may, in the unfettered exercise of its discretion, elect to approve (consistent with the
terms of this Agreement, as they may be mutually modified by the Parties) or not approve a
DDA or any other entitlement for the Project Site.
Section 8.2 Conditional Commitment to Terms. If the CIC and ARRA chose to
approve and execute a DDA with APCP for the Project Site, and APCP elects to execute the
DDA, the Parties agree that such DDA shall contain, implement, and shall be internally
consistent with, the provisions referenced, described, or set forth in this Article VIII, subject to
mutual modification by the Parties.
Section 8.3 Terms not Exclusive. The provisions of this Article VIII are not intended
as an exclusive list of the contents of a DDA, a document anticipated to be longer, more detailed,
elaborating on and going beyond the treatment of issues in this Section. The DDA shall,
however, be consistent with the provisions of this Section.
Section 8.4 Acquisition. The DDA shall contain provisions for acquisition of the
Project Site by APCP as set forth in Article V in phases and on other terms and conditions agreed
to therein.
Section 8.5 Financial Terms. The DDA shall contain telins relating to the IRR and the
methodology for setting the land value as set forth in Article V.
Section 8.6 Particination and Profit Retention. The DDA shall contain terms relating
to the ARRA Profit Participation and profit retention and payment as set forth in Section 5.4.
Section 8.7 Proiect Completion. In addition to available regulatory mechanisms such
as subdivision conditions and improvement bonds, the DDA shall contain or reference terms
setting forth the use of regulatory and financial mechanisms to secure the completion the
development of each phase of the project in a prompt and reasonable manner, and providing for
remedies to Alameda for failure to complete. Such mechanisms shall include, but will not be
limited to:
(a) Provisions providing for the development of certain uses, phases, or
subphases concurrently with other uses, phases, or subphases.
(b) Provisions providing for the completion or partial completion of phases or
subphases prior to the commencement of development of other phases or subphases.
(c) A schedule of performance ( "Schedule of Perfoiniance ") to be completed
concurrent with completion of the DDA, containing APCP acquisition, leasing, permitting and
development obligations. The Schedule of Performance will include pre- conveyance obligations
such as the filing of applications for tentative maps, the filing of final maps, the completion of or
22
bonding for infrastructure, and post - conveyance infrastructure and vertical development
obligations.
(d) Extensions for performance due to force majeure or litigation challenging
entitlements, subject to maximum periods to be negotiated in the DDA
(e) Appropriate financial assurances, which may include guarantees, to assure
development of conveyed phases (designed to carry out this purpose with the minimum negative
impacts to APCP).
(f) Terms providing for and assuring the development of all affordable
housing by phases pursuant to the requirements of redevelopment law, the Housing Element of
the General Plan, and the City's settlement agreement with Renewed Hope.
(g) Default and termination provisions (including reasonable cure periods),
including rights to liquidated damages and fees for extensions, for failure to acquire property on
the Project Site, to apply for entitlements, or to develop the Project Site pursuant to the terms of
the DDA and the Schedule of Performance.
(h) Rights of reverter in ARRA to conveyed undeveloped land.
(i) Rights in Alameda to terminate the DDA and replan and reprogram the
site in the event that a non - default condition arises that prospectively prevents the development
of a future phase or phases within the Schedule of Performance development schedules, subject
to reasonable cure periods, provisions for recovery of stranded capital investment from
subsequent Alameda net revenues from the Project site, and rights of first negotiation in APCP to
enter into a subsequent Exclusive Negotiation Agreement for such replanning.
Section 8.8 No Alameda Liability. The DDA shall contain terms which provide that
Alameda shall have no financial obligation or liability associated with (a) remediation on or
related to the Project Site or (b) development on or related to the Project Site, provided that this
clause (b) is subject to the express provisions of Section 8.13(a).
Section 8.9 Business and Fin4ncin,4 Plan. The DDA shall contain, attach or reference,
a post -DDA Business Plan and a post -DAA Financing Plan. The DDA provisions shall include
provisions for periodic update of these Plans and the requirement that major financial actions of
the Parties are consistent with the Plans. The Plans shall contain the following:
(a) The organizational structure of APCP and related entities necessary to
carry out the Project, and a budget containing the sources and uses of funds for APCP for such
purposes.
(b) The sources and uses of funds for development of each phase of the
Project. Such Plan elements shall utilize the principal of least -cost financing, providing
opportunities for the use of public financing or other lower cost financing devices before higher
cost sources such as APCP equity (while maintaining minimum equity requirements in Section
8.10 herein).
23
(c) Provisions that provide that the planning, construction, financing and
payment for on and off -site Project infrastructure is an obligation of APCP and not Alameda
except to the extent of voluntarily committed public financing by Alameda for the Project Site.
(d) The sources and uses of funds for maintenance and operation of the
Project.
Section 8.10 Equity Requirements. At ARRA's election, the DDA shall contain terms
which provide that (i) private land -based financing shall be limited to a maximum of 60% loan to
value ratio, the ratio to be calculated after deducting the public land -based financing provided or
otherwise irrevocably committed by Alameda; and (ii) APCP shall be required to contribute and
maintain a minimum of ten percent (10 %)equity in the real property that is subject to such land -
based financing. Such loan to value ratio and minimum equity requirements shall be consistent
with the requirement of institutional lenders.
Section 8.11 Transportation. The DDA shall include provisions (or reference such
provisions in the Master Plan or related documents) which commit APCP to: (1) the
implementation of transportation mitigation measures identified for the Project, referred to in
Section 4.2(c) and (2) the continued planning and permitting activities, and the financing
measures necessary to evaluate and advance feasible cross - channel transportation facilities.
Section 8.12 Compliance with CIC and City Requirements. The DDA shall include
provisions assuring APCP's compliance with all CIC and City requirements applicable to
development of the Site including, but not limited to: (i) the Nondiscrimination and
Nonsegregation requirements of the Community Improvement Plan for the APIP; (ii) any
requirements for training and employment opportunities to be extended to low- income residents
of the project area(s); and (iii) involvement of Small Disadvantaged Businesses.
Section 8.13 Tax Increment and Other Public Financing.
(a) Public Financing . To the extent volunteered by Alameda, and subject to
any conditions imposed thereon, including priority or repayment, and committed to in the DDA,
the CIC shall make tax increment generated by the Project available to obtain public fmancing to
fund project costs eligible under applicable law. The DDA or related documents, as applicable,
shall determine the timing and phase 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 DDA Pro Forma.
(b) Community Facilities District or Other Public Financing Funding. Subject
to the provisions of Section 8.13(a) above, the DDA shall contain provisions which allow
Alameda, in the sole exercise of its discretion, to make available additional public financing,
including,, but not limited to,_ formation of a community facilities district. APCP shall cooperate
in the formation of such assessment or taxing district.
(c) Financial Protections. All public financing provided by Alameda shall be
conditioned upon the inclusion of customary adequate protections for the City and CIC and their
respective financial positions.
24
ARTICLE IX - RIGHT OF ENTRY' BY APCP /PERMIT TO ENTI R,DVRING TERM OF
CAA PRIOR TO DDA
Section 9.1 Entry on Property by APCP during the Term of this Agrecwnt. APCP
currently has access to the Project Site as the Property Manager and agent of ARRA under the
Property Management Agreement dated as of May 1, 2002, as subsequently amended, between
ARRA and APCP. However, APCP's rights of access do not include the right to conduct any
physical testing of the Project Site and include only limited rights for construction and other
physical work on the Project Site and the existing buildings. APCP shall comply with the
provisions of Section 9.2 below for any physical testing and any construction or other physical
work not expressly authorized by the terms of the Property Management Agreement.
Section 9.2 Permit to Enter. If at any time during the Term of this Agreement, APCP
desires to conduct any physical testing or other work on the Project Site not permitted by the
terms of the Property Management Agreement, or if the Property Management Agreement is not
in effect, then APCP shall obtain a permit to enter ( "Permit to Enter ") the Project Site from
Alameda in form reasonably required by Alameda, and subject to such conditions as Alameda
shall be required to impose, including without limitation, permission by the Navy, or as
necessary to protect the interests of Alameda.
ARTICLE X - ASSIGNMENT, TRANSFER AND MORTGAGE
Section 10.1 No Right to Transfer.
(a) APCP represents and warrants to Alameda the following. APCP is
presently a limited liability company whose constituent members are separated into two classes
of members referred to, for the purpose of this Agreement, as "Operating Members" and
"Passive Members." The Operating Members are (i) Centex Homes, a Nevada general
partnership, (ii) Shea Homes Limited Partnership, a California limited partnership, and (iii) Shea
Properties, LLC, a Delaware limited liability. The Passive Members are (i) MSRF Real Estate
Fund IV, L.P., a Delaware limited pay tnership, (ii) Morgan Stanley Real Estate Fund IV
Domestic, L.P., a Delaware limited partnership, (iii) Morgan Stanley Real Estate Investors IV
Domestic, L.P., a Delaware limited partnership, (iv) Morgan Stanley Real Estate Fund IV
Special Domestic, L.P., a Delaware limited partnership and (v) Industrial Realty Group, LLC, a
Nevada Limited liability company. The Passive Member's interest may be freely transferred.
The Operating Members have exclusive control and are responsible for any and all decisions
made by APCP, which include, but are not limited to, those relating to the negotiation of the
DDA, acquisition and disposition of the Project, development of the Project and all related
matters thereto. The Operating Members are also responsible for obtaining /contributing all
requisite future capital required for the Project and the Passive Members have no obligation, of
any form, for further contributions to APCP and/or the development of the Project. The Passive
Members do not possess voting rights with regards to APCP's development, sale, disposition or
related matters thereto concerning the Project. Notwithstanding any other provision of this
Agreement to the contrary, the Passive Members and their successors in interest shall have no
obligation, of any form, to comply with the obligations of individual members of APCP as set
forth in this Agreement. APCP has delivered to Alameda a written agreement signed by all the
constituent members of APCP sufficient to confirm the foregoing representations and warranties.
25
Within sixty (60) days of the Execution Date, APCP shall deliver to Alameda a fully executed
copy of the Operating Agreement for APCP that will include the foregoing provisions.
(b) Without the prior written approval of Alameda, which approval may be
given or withheld in its sole and absolute discretion, neither APCP or nor any of its constituent
members shall have to right to (a) assign, transfer or mortgage any rights under this Agreement;
(b) make any change in the ownership of the interests within APCP, including the addition of
any other members; or (c) revise the above - described roles of the respective constituent members
with respect to the development of the Project.
ARTICLE XI - DEFAULT AND REMEDIES
Section 11.1 Defaults by APCP.. The following constitute Events of Default by APCP:
(a) APCP fails to pay any amount required to be paid hereunder or under the
Expedited Processing Agreement or Cost Recovery Agreement when due and such failure
continues for a period of ten (10) days from the date of written notice thereof from Alameda.
(b) APCP or any of its constituent members suffers or permits an assignment,
transfer or mortgage of any rights under this Agreement in violation of Article X above.
(c) Without limiting any other provision of this Section 11.1, APCP fails to
perform any other obligations or duties provided in this Agreement after the time for any cure or
the expiration of any grace period specified therefor, or if no such time is specified, within thirty
(30) days after the date of written demand by Alameda to APCP to perform such obligation and
duty, or in the case of a default not susceptible of cure within thirty (30) days, APCP fails
promptly to commence to cure such default and thereafter to prosecute diligently such cure to
completion within a reasonable time thereafter.
Section 11.2 Alameda Remedies. Upon the occurrence of an Event of Default by
APCP, Alameda shall have the remedies set forth below:
(a) Alameda may terminate this Agreement upon ten (10) days' written notice
to APCP. Upon such termination, Alameda shall no further obligation whatsoever to APCP
except as specifically set forth in this Agreement.
(b) Alameda shall be entitled to all other remedies permitted by law or at
equity.
Section 11.3 Defaults by Alameda. The following constitute Events of Default by
Alameda:
(a) Alameda fails to perform any other obligation and duty provided for in
this Agreement after the time for any cure or the expiration of any grace period specified
therefor, or if no such grace period is specified, within thirty (30) days after the date of written
demand by APCP to Alameda to perform such obligation or duty, or, in the case of a default not
susceptible of cure within thirty (30) days, Alameda fails promptly to commence to cure such
default and thereafter to prosecute diligently such cure to completion within a reasonable time.
26
Section 11.4 APCP Remedies. Upon the occurrence of an Event of Default by
Alameda, APCP shall have the remedies set forth below:
(a) APCP may terminate this Agreement upon ten (10) days' written notice to
Alameda. Upon such termination, Alameda shall have no further obligation whatsoever to
APCP.
(b) APCP may institute an action for specific performance.
Section 11.5 No Liability of Alameda for Damages Alameda shall not be liable to
APCP for any damages caused by an Event of Default.
Section 11.6 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the
Parties to this Agreement, whether provided by law, in equity or by this Agreement, are
cumulative, and the exercise by either Party of any one (1) or more of such remedies will not
preclude the exercise by it, at the, same or a different time, of any other such remedies for the
same default or breach or of any of its remedies for any other default or breach by the other
party. No waiver made by either Party with respect to the performance, or mariner or time
thereof, of any obligation of the other Party or any condition to its own 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 and to the extent thereof, or a
waiver in any respect in regard to any other rights of the Party making the waiver or any other
obligations of the other Party.
Section 11.7 Default Interest. Any monetary amounts not paid within the applicable
notice and cure periods set forth above shall bear default interest ( "Default Interest ") during the
period from the expiration of the applicable notice and cure period until paid at the rate of ten
percent (10.00 %), but in no event shall such interest exceed the maximum rate permitted by law.
ARTICLE XII- SPECIAL PROVI$I,ONS
Section 12.1 Disputes. Except as otherwise specified herein, including without
limitation decisions that are to be made in the sole and absolute discretion of Alameda and for
decisions to be determined pursuant to Section 7.6 above, upon the mutual agreement of APCP
and Alameda, any controversy or dispute may be submitted to mediation or arbitrations in
accordance with rules to be mutually agreed upon by the Parties.
Section 12.2 Non liability of Alameda
(a) APCP Warrants it Has No Claims Against Alameda. APCP, on behalf of
itself and of each of its members, constituted as it was when selected, now or as it may be in the
future, warrants that APCP nor any of its members do not have, and shall not at any time, make
any claim or claims against Alameda, individually or collectively, or against ARRA, the CIC or
City Property (all as hereinafter defined), directly or indirectly, by reason of any or all of the
causes set forth in Section 12.2(c).
27
(b) Nonliabilitv of the ARRA, the CIC and the City of Alameda. Subject to
Alameda's compliance with the provisions of this Agreement, APCP 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 for in Section 12.2(c).
(c) Causes to which Nonliabilitv Apply. The causes to which the provisions
of Sections 12.2(a) and 12.2(b) apply are as follows:
(1) Any aspect of the RFBP, including any information or material set
forth therein or referred to therein.
(2) Any modification, or suspension of the RFBP, or informalities or
defects therein.
(3)
Any defects in the selection procedure identifying APCP as the
master developer conducted by ARRA or any act or omission of the
ARRA with respect thereto, or any release or dissemination of any
information submitted by APCP to the ARRA prior to the Effective
Date of the ENA.
(4) Any aspect of the ENA, including without limitation the negotiations
among the Parties during the term of the ENA.
(5) Any aspect of the negotiations preceding the execution of this
Agreement.
(6) The exercise of any ARRA, CIC or City discretion, decision and
judgment provided for in this Agreement.
(d) APCP expressly and absolutely waives any and all Claim or Claims
against the ARRA, the CIC, the City or the Project Site, directly or indirectly, arising out of or in
any way connected with any or all of the matters set forth in Section 12.2(c)
(e) Definitions. For purposes of this section, the words defined in this
paragraph shall have the meanings ascribed to them herein:
(1) "ARRA" "CIC" and "City" includes their respective members,
officers, employees, agents, consultants, successors, and assigns.
(2) "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 not 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 CIC and/or Project Site, or Claims that might be asserted against or
cloud title to CIC or Project Site.
28
Section 12.3 Hold Harmless and Indemnity of Alameda. APCP shall defend, hold
harmless and indemnify the ARRA, the CIC and the City, and each of them from and against any
and all Claims made by any third party directly or indirectly arising out of the APCP's Response
to the RFBP, the ENA 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 except
that during the ARRA- Funded Development Period, such obligation shall not apply to any claim
to the extent resulting from an act or omission of ARRA, the CIC and/or the City. The
obligations of APCP under this Section 12.3 shall survive any termination of this Agreement to
the extent the circumstances giving rise to the Claim occur prior to such termination.
Section 12.4 Confidentiality of Information and Negotiations. Alameda and APCP
enter this Agreement with the understanding that the APCP may provide certain information of a
confidential nature during the negotiations of the DDA and other tasks identified in this
Agreement. Such information may be necessary for Alameda to verify information that is
relevant to the negotiations of the DDA. Alameda and APCP agree that they will keep
confidential and not disclose any information submitted by APCP in the course of the
negotiations or preliminary drafts of DDA 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. APCP agrees to bear all costs of any litigation that is
filed to determine the applicability of public records law to documents submitted by APCP in
furtherance of negotiating a DDA or any other agreement contemplated in this Agreement.
Notwithstanding the provisions of this Section, in no event shall any party be required to disclose
to any other party information which is protected by the attorney - client privilege.
Section 12.5 Exclusive. During the Term of this Agreement, Alameda agrees not to
negotiate with any other person or entity regarding the development and/or control of the Project
Site (and all portions thereof) or solicit or entertain bids or proposals to do so, except that
Alameda may exercise any and all of its rights to terminate the Property Management Agreement
and to retain an entity other than APCP to act as property manager.
Section 12.6 ENA. Upon the Effective Date of this Agreement, the terms and
provisions of this Agreement shall supersede the terms and provisions of the ENA.
ARTICLE XTfI - NOTICES
Section 13.1 Notices, Demands and Commui ,ications Between the Parties. Any notice
required or permitted to be delivered hereunder shall be in writing and shall be deemed received
upon personal delivery or upon delivery by facsimile to the party to whom the notice is directed,
provided that confirmation of facsimile delivery occurs prior to 5:00 p.m. California time and the
facsimile is followed by delivery of a "hard" copy to the addresses listed below or, if sent by
mail, three (3) business days following its deposit in the United States mail, postage prepaid,
certified mail, return receipt requested, or, if sent by FedEx or other reliable overnight courier,
on the next business day following dispatch, and in any such events addressed to Alameda or
APCP, as the case may be, at the addresses set forth below (or such other address as a party may
specify by notice given pursuant to this Section).
29
Alameda:
With copies to:
APCP:
City of Alameda
2263 Santa Clara Avenue
Alameda, California 94501
Attention: City Manager
Telephone: (510) 748 -4505
Facsimile: (510) 748 -4504
City of Alameda
2263 Santa Clara Avenue
Alameda, California 94501
Attention: City Attorney
Telephone: (510) 798 -4544
Facsimile: (510) 748 -4691
Alameda Reuse and Redevelopment Authority
950 W. Mall Square
Alameda, California 94501 -5012
Attention: Development Services Director
Telephone: (510)749 -5950
Facsimile: (510) 749 -5808
Alameda Point Community Partners
c/o Centex Homes
2527 Camino Ramon, Suite 100
San Ramon, CA 94583
Attention: John Ochsner
Telephone: (925) 415 -1600
Facsimile: (925) 415 -1601
With copies to: Donald J. Sajor, Esq.
VP & Regional General Counsel
Centex Homes
2527 Camino Ramon, Suite 100
San Ramon, CA 94583
Telephone: (925) 415 -1600
Facsimile: (925) 415 -1601
Layne Marceau
President, Northern California
Shea Homes
2580 Shea Center Drive
Livermore, CA 94550
Telephone: (925) 245 -3600
Fax: (925) 245 -8831
3.0
Robert M. Burke
General Manager
Nor Cal Group
Shea Properties
2580 Shea Center Drive
Livermore, CA 94550
Telephone: (925) 245 -3652
Fax: (925) 245 -8838
Aidan Barry
Project Manager
Alameda Point Co
unity Pat tiers
Telephone: (510) 749 -0304
Fax: (925) 749 -1330
Notwithstanding the foregoing, Alameda may respond to APCP requests for information
by delivering requested information to only the address of the requesting representative of
APCP.
ARTICLE XIV - MISCELLANEOUS
Section 14.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
Section 14.2 Entire Agreement. This Agreement contains the entire agreement of the
Parties regarding the development of the Project Site. This Agreement may be modified only by
written agreement signed by each of the Parties hereto.
Section 14.3 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 14.4 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 of the language in question.
Section 14.5 Counterparts. This Agreement maybe executed in counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
agreement.
Section 14.6 Attachments. Each Attachment to this Agreement is incorporated herein
and made a part hereof as if set forth in full.
Section 14.7 Authority. The persons signing below represent and warrant that they have
the authority to bind their respective Party and that the approvals of all necessary boards of
31
directors, shareholders, partners, members, the city councils, redevelopment agency or others
have been obtained.
Section 14.8 Best Efforts. "Best Efforts" shall mean the 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 (i) are not part of the
activities contemplated under Section 6.1 and the funds advanced by ARRA for the ARRA-
Funded Predevelopment Period; or (ii) are not recoverable under the Cost Recovery Agreement
described in Section 7.2; nor shall "Best Efforts" require either Party to incur liabilities unless
such act is otherwise explicitly required by this Agreement or by State or federal law.
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 terms and
provisions hereof, have executed this Agreement as of the date set opposite their signatures. The
Execution Date of this Agreement shall be the date the Agreement is fully executed by Alameda.
ALAMEDA REUSE AND ALAMEDA COMMUNITY
REDEVELOPMENT AUTHORITY IMPROVEMENT COMMISSION
By: By:
Executive Director Executive Director
Date: Date:
RECOMMENDED FOR APPROVAL: RECOMMENDED FOR APPROVAL:
APPROVED AS TO FORM: APPROVED AS TO FORM:
General Counsel General Counsel
CITY OF ALAMEDA
By:
City Manager
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RECOMMENDED FOR APPROVAL:
APPROVED AS TO FORM:
City Attorney
33
ALAMEDA POINT COMMUNITY PARTNERS, LLC, a Delaware limited liability
company
By:
Its:
34
List of Appendices and Attachments
Appendix 1 Defined Terms (List of Defined Terms used in Agreement and definition
or reference to location of definition in Agreement)
Attachment 1
Attachment 2
Attachment 3
Attachment 4
Attachment 5
Attachment 6
Attachment 7
Attachment 8
Attachment 9
NAS Alameda and Project Site
Map of Adaptive Reuse and Tentative Residential and New Commercial
Areas
Trust Area
ARRA Public Amenities
Terms of Convertible Ground Lease for Adaptive Reuse
Matrix of ARRA Activities
APCP Interim Budget
Scope and Content of APCP Work Product
Illustrative Fiscal Neutrality Framework
35
APPENDIX 1 DEFINED TERMS
Adaptive Reuse Area As defined in Section 1.2(b).
Agreement As defined in the initial introductory paragraph of the foregoing Conditional
Acquisition Agreement.
Alameda As defined in the second introductory paragraph .
Alameda Priority Public Goals As defined in Section 4.1.
Alameda Trust Grant As defined in Section 5.8(a) .
APCP As defined in the initial paragraph .
APCP Interim Budget As defined in Section 6.5 .
APCP Pre -DDA Budget As defined in Section
APCP Quarterly Redevelopment Expense Report As defined in Section 7.4 .
APIP Community Improvement Plan As defined in Paragraph G.
APIP Project As defined in Paragraph G.
APIP Project Site As defined in Paragraph G.
ARRA As defined in the initial paragraph.
ARRA- Funded Predevelopment Period As defined in Section 6.1.
ARRA Profit Participation As defined in Section 5.4(a).
AUSD As defined in Section 1.2(a)(ii) .
Best Efforts As defined in Section 14.8.
Business Plan As defined in Section 7.1(e).
CEQA As defined in Section 3.3(a).
CERCLA As defined in Paragraph D. .
CIC As defined in the initial paragraph .
36
City As defined in the initial paragraph .
Claim or Claims As defined in Section 12.2(e)(2) .
Conditional Option As defined in Section 3.1 .
Convertible Ground Lease for Adaptive Reuse As defined in Section 5.6(a) .
Core Group As defined in Section 7.6(a) .
Cost Recovery Agreement As defined in Section 7.2.
DA As defined in Section 3.2 .
DDA As defined in Paragraph I.
DDA Pro Forma As defined in Section 5.2.
Default Interest As defined in Section 11.7 .
Development Costs As defined in Section 5.4(c)(i) .
East Housing As defined in Paragraph A. .
Effective Date As defined in the initial paragraph .
EDC MOA As defined in Paragraph D. .
EIS As defined in Paragraph C .
ENA As defined in Paragraph I.
EPA As defined in Section
ESCA As defined in Section 3.3(d)(iii) .
Events of Default As defined in Article XL
Excluded Portions As defined in Section 1.2(a).
Execution Date As defined in the initial introductory paragraph.
Expedited Processing As defined in Section 7.2.
Extended Term As defined in Section 2.1(b).
Fiscal Impact Model Template As defined in Section 4.1
FOSET As defined in Paragraph D. .
Governor As defined in Section 3.3(d)(i) .
Gross Cash Receipts As defined in Section 5.4(c)(ii) .
Initial Pro Forma As defined in Section 5.1(a)(ii) .
Initial Term As defined in Section 2.1(a) .
IRR As defined in Section 5.4(c)(iv).
LIFOC As defined in Paragraph E.
NAS Alameda As defined in Paragraph A.
Navy As defined in Paragraph A.
NEPA As defined in Paragraph C.
New. Commercial Area As defined in Section 1.2(b).
Party or Parties As defined in Section 1.1.
Permit to Enter As defined in Section 9.2.
Post -DDA Business Plan. As defined in Section 8.9.
Post -DDA Financing Plan As defined in Section 8.9.
Preliminary Development Concept As defined in Section 6.1(a) .
Pro Forma Template As defined in Section 5.1(a)(ii) .
Project EIR As defined in Section 3.3(a) .
Project Pro Formas As defined in Section 5.1(a)(i).
Project Related Revenues As defined in Section 4.3 .
Project Site As defined in Paragraph B.
Property Management Agreement As defined in Section 9.1.
Qualified Predevelopment Expenses As defined in Section 7.4.
RFBP As defined in Paragraph H. .
Redevelopment Law As defined in Paragraph G.
Residential Area As defined in Section 1.2(b).
Reuse Plan As defined in Paragraph F.
Schedule of Performance As defined in Section 8.7(c).
Term As defined in Section 2.1 .
Tidelands Trust Exchange Agreement As defined in Section 3.3(c)
Trust Area As defined in Section 5.8(b) .
Unleveraged Cash Flow As defined in Section 5.4(c)(iii) .
ATTACHMENT 1
NAS ALAMEDA AND PROJECT SITE
40
ATTACHMENT 2
MAP OF ADAPTIVE REUSE AND
TENTATIVE RESIDENTIAL AND NEW COMMERCIAL AREAS
ATTACHMENT 3
TRUST AREA
2
ATTACHMENT 4
ARRA PUBLIC AMENITIES
TE
ATTACHMENT 5
S OF CONVERTIBLE GROUND LEASE FOR ADAPTIVE REUSE
1
ATTACHMENT 6
MATRIX OF ARRA ACTIVITIES
ATTACHMENT 7
APCP INTERIM BUDGET
2
ATTACHMENT 8
SCOPE AND CONTENT OF APCP WORK PRODUCT
3
ATTACHMENT 9
MEMORANDUM OF EFFECTIVE DATE
4
CONFIDENTIAL REAL ESTATE NEGOTIATIONS
ARTICLE I — PARTIES
Table of Contents
D PRQPE,RTY 3
Section 1.1 Parties. 3
Section 1.2 Project Site. . 3
ARTICLE II - TERM 4
Section 2.1 Terni. 4
Section 2.2 Termination. 5
ARTICLE III CONDITIONAL OPTION, EXERCISE, CONDITIONS,
EFFECTIVENESS 5
Section 3.1
Section 3.2
Section 3.3
Grant of Conditional Option. 5
Exercise of Conditional Option by APCP. 6
Conditions Precedent to Conditional Option becoming Effective 6
ARTICLE IV — Alameda -priority Public Goals. 8
Section 4.1
Section 4.3
Section 4.4
ARTICLE V
Section 5.1
Section 5.2
Section 5.3
Section 5.4
Section 5.5
Section 5.6
Section 5.7
Section 5.8
Alameda Priority Public Goals Defined. 8
8
8
Treatment of Alameda Priority Public Goals in the Project Pro
Forma 8
Election. 10
11
Initial Pro Forma 11
DDA Project Pro Fotina 13
Tolling of Predevelopment IRR. 14
Profit Participation. 14
$500,000 Reimbursement Payment. 15
Convertible Ground Lease for Adaptive Reuse. 16
Adjustments after Execution of DDA. 16
Tidelands Trust Leases 16
ARTICLE VI - ARRA- FUNDED PREDEVELOPMENT PERIOD,
16
Section 6.1 ARRA- Funded Predevelopment Period, 16
Section 6.2 Extension of the ARRA- Funded Predevelopment Period. 17
Section 6.3 Completion or Termination of the ARRA- Funded redevelopment
Period; Transfer of Responsibility Back to APCP. 17
2000236.5618
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CONt 1DENTIAL REAL ESTATE NEGOTIATIONS
Section 6.4 ARRA Role and Duties during the ARRA- Funded
Predevelopment Period. 17
Section 6.5 APCP Role and Duties during the ARRA- Funded
Predevelopment Period. 17
ARTICLE VII OBLIGATIONS OF THE PARTIES DURING TERM OF
CAA 18,
Section 7.1
Section 7.2
Section 7.3
Section 7.4
Section 7.5
Section 7.6
Project Entitlements and Related Agreements 18
Expedited Processing Agreement and Cost Recovery. 19
Delivery of Documents and Reports. 19
APCP Predevelopment Obligations and Expenditures
Limitations. 20
Quarterly Accounting. 21
Core Group 21
ARTICLE VIII -Key Terms to be included in DDA
22
Section 8.1 Agreement Confers No Right to a DDA. 22
Section 8.2 Conditional Commitment to Terms. 22
Section 8.3 Terms not Exclusive 22
Section 8.4 Acquisition. 22
Section 8.5 Financial Terms. 22
Section 8.6 Participation and Profit Retention 22
Section 8.7 Project Completion. 22
Section 8.8 No Alameda Liability. 23
Section 8.9 Business and Financing Plan. 23
Section 8.10 Equity Requirements 24
Section 8.11 Transportation. 24
Section 8.12 Compliance with CIC and City Requirements 24
Section 8.13 Tax Increment and Other Public Financing 24
ARTICLE IX - Right of Entry by APCP /Permit to Enter during Term of
CAA prior to DDA 25
Section 9.1 Entry on Property by APCP during CAA. 25
Section 9.2 Permit to Enter. 25
ARTICLE X -. Assignment, Transfer and Mortgage 25
Section 10.1 No Right to Transfer 25
ARTICLE XI - Default and Remedies 26
Section 11.1 Defaults by APCP 26
Section 11.2 Alameda Remedies. 26
Section 11.3 Defaults by Alameda 26
Section 11.4 APCP Remedies 27
2000236.5618
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CONFIDENTIAL REAL ESTATE NEGOTIATIONS
Section 11.5 No Liability of Alameda for Damages 27
Section 11.6 Rights and Remedies are Cumulative. 27
Section 11.7 Default Interest. 27
ARTICLE XII - Special provisions 27
Section 12.1 Disputes. 27
Section 12.2 Non liability of Alameda 27
Section 12.3 Hold Harmless and Indemnity of Alameda. 29
Section 12.4 Confidentiality of Information and Negotiations. 29
Section 12.5 Exclusive. . 29
Section 12.6 ENA. 29
ARTICLE XIII - Notices 29
Section 13.1 Notices, Demands and Communications Between the Parties. 29
ARTICLE XIV - Miscellaneous 31
Section 14.1 Governing Law. . 31
Section 14.2 Entire Agreement. 31
Section 14.3 Captions. . 31
Section 14.4 Construction. 31
Section 14.5 Counterparts. 31
Section 14.6 Attachments. 31
Section 14.7 Authority. 31
Section 14.8 Best Efforts. . 32
N:V3Alarnc \Na \e -mail documents \MBM018 (10
2000236.5618
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08/15/03.V5
,,,A■Vigl11∎•00t \F
rtai4 \ {lA1SA��
J4�`ltlG1Q}�Y1U}1011i1U11Y1((jl
•
1
RESIDENTJAL
LEGEND
1
1
1
1
1
PROTECT SITE BOUNDARY
-- - -•--- LAND USE BOUNDARY
NOTE: NON- LABELED AREAS ARE
DESIGNATED FOR OTHER
MISCELLANEOUS USES
Carlson. Barbee
Glason, nc.
Mgr.* Poggp 9M .__t*, S
swuntaageso
0'
III IIIUyN1H191 @IH�IWIIIIII
SCALE: 1"= 1200"±
1200' 1800'
mit
ATTAC ENT #2
PROJECT SITE
ALAMEDA POINT
ALAMEDA, CA
^rL';iM
z�l
�'os u10,
� •7a•
�c�.
LEGEND
® RECONFIGURED PUBLIC TRUST AREA
Colson,
3211tiaw..rr. .anae630
1600' 2400'
SCALE: 1 "= 1600 ":
MOM
ATTAC ENT #3
TRUST A
ALAMEDA PO
ALAMEDA, D A, CA
ATTACHMENT 4
PUBLIC AMENITIES FOR ALAMEDA POINT REDEVELOPMENT
Amentity
Sports Complex
Community Center (O' Club)
City Hall West Upgrades
Fire Station Upgrade
Transportation Solutions
Library
Estimated Gross Cost*
$21 million
$2 million
$1.5 million
$1.2 million
$50 million
$2 million
Cost of amenities shown for illustrative purposes only. Estimates for the purpose of
setting maximum limits for cost will be determined during negotiation of the initial pro
forma and the DDA pro forma. Cost estimates for those pro formas will take into
account other sources of funding available and will represent net costs, not necessarily
the gross cost figures shown above.
ATTACHMENT 5
MATERIAL TERMS FOR CONVERTIBLE GROUND LEASE FOR ADAPTIVE REUSE
1. Effective Date: The Term of the Convertible Ground Lease is anticipated to
commence simultaneously with the initial conveyance of the first phase of residential
developable land, subject to final determination during DDA negotiations.
2. Tenn: Approximately sixty years. Length of initial term and number and length
of extension options to be determined during DDA negotiations. The Convertible Ground Lease
will be junior to the LIFOC, but will remain in effect after conveyance of fee title from the Navy.
3. Premises: All of the buildings in the Adaptive Reuse Area except the Excluded
Areas. The DDA will define the land portions of the Project Site that will be leased with the
Adaptive Reuse buildings.
4. Subleasing Rights: APCP will have the right to enter into subleases, subject to
limitations and parameters on subleasing to be included in the Convertible Ground Lease .
5. Rent:
5.1 Interim Rent. To be determined as part of the DDA negotiation s. Rent is
not the same as the Purchase Price (any Interim. Rent shall be shown in the Initial Pro Forma and
the DDA. Pro Forma).
5.2 Long Term Rent. If APCP makes the required investments in capital
improvements described in Section 11 below, so that Alameda no longer has the right to
terminate the Convertible Ground Lease for failure to do so and APCP would be entitled to
exercise its right to convert, the Convertible Ground Lease will provide for (1) a new long term
rent to apply and/or (2) the right for Alameda to require that APCP pay the Purchase Price and
acquire title to the Adaptive Reuse premises (any Long Term Rent shall be shown in the Initial
Pro Forma and the DDA Pro Forma).
6. Financial Obligations (in addition to "Rent"): The Convertible Ground Lease will
be on'a fully net basis, meaning that all obligations associated with maintenance, repair, upkeep,
insurance and taxes with respect to the Adaptive Reuse Area, including all buildings located
therein other than the buildings located on the Excluded Portions would be the obligations of
APCP. In addition, APCP may be responsible for certain obligations for the buildings on the
Excluded Portions, to be determined during DDA negotiations. Finally, either through "Rent" or
other provisions of the Convertible Ground Lease, APCP will have to pay amounts to Alameda
sufficient to cover all obligations of Alameda then being paid out of lease revenues, which shall
be contained in the Initial Pro Forma and the DDA Pro Forma.
7. Income from Lease Revenues: The Ground Lease will provide for APCP to
receive the income from the leased premises; provided, however, that APCP would be
responsible to pay the financial obligations agreed to under Section 6 above, and any other
obligations as set forth in the CAA.
8. RiKht to Convert and Purchase Price: . The Convertible Ground Lease will
provide for the transfer of fee title to the Adaptive Reuse Area (other than the Excluded Portions)
to APCP (excepting the Tidelands Trust Area) subject to the satisfaction of specified conditions
precedent, which will be finally determined during DDA negotiations. These conditions may
include, without limitation: (i) timely payment of Rent and Purchase Price; (ii) completion of
certain required improvements for the Adaptive Reuse Area (to be determined during the DDA
negotiations) as referred to in Section 10 of this Attachment or posting of substantive collateral
for the obligation to complete; (iii) recordation of Master CC &Rs requiring compliance with
maintenance, repair operation and assessment criteria; (iv) compliance with all required
obligations under DDA and (v) ARRA having received fee title to the Adaptive Reuse Area from
the Navy. The Parties will determine in the DDA negotiations whether the acquisition of the
Adaptive Reuse Area by APCP can be phased. If the Parties agree upon a phasing plan for the
acquisition of the Adaptive Reuse Area, then, subject to the provisions of the foregoing clauses
above, the Parties will further negotiate in the DDA to reach agreement upoii (a) an
agreed -upon progression; (b) terms and conditions for a transfer out of order to allow for a sale
to a third party purchaser and (c) a structure to provide that upon APCP's completion of the
required improvements in a certain area (with all costs therewith funded or the providing of
satisfactory substantive security for the payment of such costs), fee title would be transferred to
APCP and such area would thereafter no longer be subject to the Convertible Ground Lease.
9. Purchase Price. The Purchase Price will be calculated in the manner determined
under the Initial Pro Forma and the DDA Pro Forma as set forth in Article V of the CAA, which
determination shall take into consideration all costs imposed upon APCP under the CAA, DDA
and Convertible Ground Lease applicable or allocable to the Adaptive Reuse Area.
10. Improvements /Caoita1 Investment. The Convertible Ground Lease will require
APCP to construct the base infrastructure for the Adaptive Reuse Area (including both onsite and
offsite improvements), complete an exterior enhancement process, comply with certain code
compliance requirements, and reconfigure/modify certain buildings to place them in a condition
that would facilitate a future leasing thereof. These expense requirements are structured to avoid
expenses that would otherwise be included in conjunction with specific tenant demands (which
are unknown). A schedule for completion of the required construction/improvements will be
part of the DDA negotiations. Failure of APCP to complete such work (subject to defined force
rnajeure events) will constitute a default under the Convertible Ground Lease, allowing ARRA to
enforce specified remedies, including, but not limited to, termination of the Convertible Ground
Lease. APCP's cost of completing such required improvements are separate and distinct from
the payment of "Rent" and "Purchase Price "; provided, however, that all such costs shall be
included in the Initial Pro Forma and the DDA Pro Forma.
11. Cross - Default. APCP's leasehold interest will be cross - defaulted with APCP's
rights under the DDA. In other words, a default under either the Convertible Ground Lease or
the DDA would result in a corresponding default under the other document.
12. Use /Zoning/Master CC &Rs. The Convertible Ground Lease will be subject to the
development criteria established by the DDA and related zoning overlay that applies to the
Project at the time of the DDA. In addition, the establishment and recordation of a
comprehensive set of Master CC &Rs will be utilized which, in addition to requiring compliance
with the requirements of zoning, will establish rules, regulations, and obligations for the use and
operation of all occupants of the Adaptive Reuse Area consistent with the mixed use character of
the Project. Such obligations will include, but not be limited to, complying with environmental
compliance work in concert with the remediation efforts of APCP /ARRA and avoiding any
adverse effects of the Navy's residual liability for remediation of the facilities.
13. Traffic Mitigation. Upon solving the traffic mitigation/management issues
associated with the full use of the Adaptive Reuse Area, such program will be incorporated into
the Ground Lease as an obligation of APCP to institute and oversee, subject to assignment
provisions. Such obligations shall also be contained within Master CC &Rs. The continued
compliance with such transfer requirements would be the obligation of APCP and enforceable by
ARRA under both the Ground Lease and the Master CC &Rs.
14. General Indemnification/Insurance /Risk Allocation. .._ _APCP will . provide ..
indemnifications acceptable to ARRA, the City and U.S. Navy concerning the operations of the
Adaptive Reuse Areas. In addition, insurance for commercial liability and property damage will
be placed and maintained (using criteria approved by the City's risk management experts).
Alameda will be released from all liability associated with the use, operation, leasing, and any
other cause and/or event (excepting those occurring by the gross negligence or willful
misconduct of Alameda) for Alameda Point, including the Adaptive Reuse Area.
15, Financeability. ARRA and APCP will negotiate mutually acceptable provisions
within the Convertible Ground Lease that will permit APCP to obtain private third party
financing for leasehold improvements on certain portions of the Adaptive Reuse Area. Such
provisions may include, among other requirements, . that a potential lender to be able to assess
and securitize the financing on individual buildings or areas without concern of a prospective
cross default by APCP under the in its performance with respect to other buildings or areas not
subject to such financing. These terms shall be negotiated during the DDA negotiations with
appropriate protections for Alameda as lessor.
N:1A\Pdamc \Na \does \w - Adaptive
TASK Q4
'03
1.Navy Conveyance • Navy negotiations re-
Negotiations start to prioritize
parcels to FOST
2. Resolution of Critical Planning
Issues:
• Transportation
• Historic preservation
• Public facilities
• FEMA
• Integrate critical issues
resolution into concept
plan
3. CEQA
4. Phase 1 Implementation
Entitlements
MILESTONE SCHEDULE
Q1, Q2
'04
• determine prioritized
sites (1)
• Navy funds remedial
investigations/
feasibility studies
• Review work done to-
date by APCP on
critical issues
• Retain consultants to
conduct critical issues
studies (3)
• Retain planning firm
to integrate critical
issues resolution into
concept plan.
• Confirm concept plan
(4)
• Develop program and
phasing plan (5)
• Conduct issue-based
PB / Council
workshops
GPA Conformance
zoning
Retain EIR consultant
to review critical
issues, prepare budget
and work scope for
Phase I project — level
EIR
Q3, Q4
'04
• Remedy selection
• DTSCIEPA
concurrence
• Disposal Strategy
Plan (2)
• PB hearings on
concept plan and
Phase 1 development
n Concept Plan (6)
costs in lower right quadrant inside double lines pad for by master developer through cost recovery.
ATTACHMENT 6A -
01, Q2
'05
• Remediation
process on-going
(RI/FS, remedy
selection, clean-up)
• RAP/ROD
Q3, Q4
'05
• FOST conveyances
begin
• Clean-up continues
'Ae,Ardte#E,MnlrVOAS,HTA\MW,otrozmveL,Eiz#AIWZ,K;;'Mdai
Revise concept plan
& phasing-based on
developer inputl
Prepare EIR for
Phase 1 project
• DDA Negotiations
•Begin Phase 1
specific plan,
tentative map,
rezoning and general
plan amendment
• Complete EIR for
Phase l project
• Complete specific (7)
(9) plan, tentative
map, rezoning and
general plan
amendment
• DDA (B)
ALAMEDA POINT REDEVELOPMENT 1Master Plan Area
Task
Conveyance
Prioritize Disposal Parcels
Negotiate Remedy Selection
Prepare Disposal Strategy Plan
CERCLA Process Continues
FOST Conveyances Begin
Land Use Plan
Retain Consultants EiFeainin111110111:..
Review Work to Date
Perform Critical Issues Studies 3
Revise Concept Plan !rall11,111,811IN,:i;„,,.....,
Conduct Issue Based
Develop Program/Phasing Plan 3 • 5
1
2003 20041
Q4 011
Q2
Predevelopment Project Schedule 2003-2005
1
2005 1
Q1I Q21 Q31
Q31 Q41
1
Q4
13 Hearings on Prelim. Dev. Concept
Revise Concept Plan
Final Draft Concept Plan
CEQA /Entitlements
Retain consultant
Prepare for EIR for Phase 1
DDA Negotiations
Phase 1 TM & Improvement Plans
GPA Conformance Zoning
Hearing & Workshops on Plan & EIR
NOP 8
ARRA Led Tasks
= APCP Led Tasks
= Deliverable
1
= Key Milestone
1
1
1
1
.1
Deliverables
1. Parcel Priority Footprint
12. Disposal Strategy Plan
13. Critical Issue Studies
14. Revised Concept Plan
15. Program Phasing Plan
16. Preliminary Development Concept Plan
7. Final Draft Concept Plan
8. NOP 1 1
U. tIH 1
10. DDA 1
11. Phase 1 TM, SP, GPA
1
APCP interim budget during ARRA funded predevelopment period ATTACHMENT 7
Alameda Point Community Partners, LLC
APCP expenses through 12-2004
ITEM DE CRIP�T1ON
I alCeCaltirSC(p err (Salaries andbenefits}.
c1Prn4rg �onsubuyjt �Dahlin)
el imz
el pOfj��e re
ch
Sub -Total APCP Operating Expenses
g [Contingency at 10%
h1ENA Obligation
Grand Total APCP expenses
Oct -03 Nov-03
Dec-03 I Jan-04 Feb-04
93,527 46,527 46,5271 46,527' 46,527
75,000. • 75,000 0 1 0 0
5,000 • : 5;000 5,000 5,000 5,000
12,000
20,000 20,000 5,000 5,000 5,000
2,000 2,000 2,000 2,000 2,000
195,5271 160,527 58.5271 58,527 58,527
19,5531. 16,053 5,8531 5,853 5,853
250,0001 250,0001
1
465.080 1 426,580 64.380 I . 64.380 64,380
•
accounts above:
covers salaries, and benefits.
ide review of CAA and cgn#jnued wojit regarding the OaldandlChinaiown agreements
ng cons {aeI{ all for )jn to par6'cipate a advise APCP regarding planning efforts by the City
Is n allowance fortwo and during the Predeve1op e t pe od o APCP expenses only
e • ' assumes a location at Alameda Point riot bulld�' 191 starting Qecemfiber 1, 2003 for APCP deyelopmep� persopnel only with-related utility costs
fCommu� outreach will be miscellaneous expenditures chiarged to the pro tect as eligible predevelopment expenditures above and beyond the ARRA expenditures for Community Engagement
Mar-04 1 Apr-04
46,527
0
5,000
5,000
2,000
58.527
5,853
64,380
May-04
46,527 46,627
0 0
5,000 ( 5,000
5,000 5.000
2.000 1 2,000
58.527
5.853
64.380
58.527
5,853
64,380
Jun-04
48,527
0
5,000
Jul -04
46,527
0
5,000
5,000 5,000
2,000 2,000
58,527
5,853
64,380
58,527
5,853
Aug 04
46.527
0
5,000
5.000
2.000
58427
5,853
Sep-04) Oct -04 1. Nov-04
48,527
0
5,000
5,000
2,000
58.527
5,853
46,527
0
5,000
5,000
2,000
45,527
0
5,000
5,000
2,000
58.527 1 58,527
5,853 5,85k
64.380 64.380 I 84.380 i 64.380 l 64,380
APCP
Dec -04'1 Total
46,527
0
5,000
12,000
5,000
2.000
70,527
744,905
150,000
75,000
24,000
105,000
30,000
1.126,905
7,053 112,891
500.000
77,580 ! 1,741,796
'2003
ATTACHMENT 8
LIST OF APCP WORK PRODUCT
The following represents a complete list of work product that is being made available to
ARRA for ARRA's use in the ARRA funded predevelopment period. The use of such
material is restricted as noted under each subconsultant. The subconsultant shall be listed
by company name followed by available work product with notes to described limitations
of use /ownership.
'Carlson Barbee and Gibson
-- Documents: _
Cost Reallocation Estimate prepared December 27, 2002
Preliminary Master Storm Drain Study prepared June 30, 2003
Preliminary Master Sanitary Sewer Study prepared June 30, 2003
Analysis of the original Reuse Plan
Exhibits:
Various aerials images with site plan overalls(10)
Original phasing of infrastructure for cost estimates (16)
New storm drain phasing plan
New proposed drainage are watershed maps (12)
Alameda Point Sewer Tributary Areas
New sanitary sewer phasing plan
Adaptive Reuse & Commercial Parcels with acreage
Leased Adaptive Reuse with Addresses
Leased Adaptive Reuse with lease tinning
Beautification Plans
Boundary
Collaborative comparison exhibit
Existing Trees exhibit
Landscape responsibility
Tideland. Trust (before and after)
Exhibit for EBMUD
New EDC phasing Exhibit
Marad Exhibit
June 27, 2002 Exhibits for Submittal
November 19, 2002 Exhibits for Submittal
Phasing Exhibit by Use
Notes: Documents and Exhibits will be submitted in electronic form (Documents as
word files and Exhibits as pdf files).
Fehr and Peers
• Land Use Inputs
• Transportation Strategy Reports submitted to the City in June (Four) and related
AutoCAD files
• EMME2 Model Run Files (assuming the City has a license for the software) and
related Excel files
• All documents prepared by Fehr and Peers regarding:
o Feasibility of Gondola
o Onsite and Offsite road improvements
Notes: The use and transmittal of Fehr and Peers documents is subject to the
-execution of a standard release form submitted to the ARRA for execution.
Nelson/Nveard
• Transportation Alternatives Study
The Dahlin Group
• Master Concept Plan
• Land Use Plan
• Series of Phasing Plans Including:
o Phasing Plan by Land Use
o Land Use Phasing — Residential
o Land. Use Phasing — Commercial/Retail
o Land Use Phasing — Adaptive Reuse
o Land Use Area — Phase 1
o Land Use Area — Phase 2
o Land Use Area — Phase 3
o Land Use Area — Phase 4
• Parks, Open Space and Pedestrian Connections Plan
• Bikeway Plan
• Street Hierarchy Plan
• Street Sections at 1 " =10'
The City already has hard copies of each of these graphics. The documents listed
above will be delivered in the form of a CD using a pdf format. Notes: Based on
client agreements, the original tracings and electronic files are and remain the sole
property of Dahlin Group and are not released.
Eneeo
Draft Report entitled "Findings from Preliminary Geotechnical Records Review and
Limited Geotechnical Exploration, Alameda Point Development, Alameda, California;
April S, 2003; Project No. 5687.1.001.02."
Notes: Document will be delivered in the form of a cd using a pdf format.
Domelmavr
• Initial Technical and preliminary budget allowance of Gondola
Notes: Available in hard copy format only (previously submitted to ARRA)
Sedwav Group,
Alameda Point Retail Market Analysis dated July 2003.
Notes: Available in hardcopy .format only.
Architectural Resource. Group
Preliminary Draft Historic District Analysis for Alameda Point
Notes: Available in hard copy only (previously submitted to ARRA).
ILLUSTRATIVE FISCAL NEUTRALITY FRAMEWORK, ALAMEDA POINT Attachment 9
ALAMEDA POINT CURRENTLY: ALAMEDA POINT WITH APCP DEVELOPMENT:
Lease Revenues:
Housing
Adaptive Reuse
MARAD
Note: F11. And E2. are assumed by APCP after
the property is transferred.
.......................
''•
City of Alameda
General Fund
"'*- ... . ....................
El. CIC/ARRA
Operations Expenses:
Share of Dvlpmnt Srvc
Dept.& Indirect Cost
Allocation to GF
E2. CIC/ARRA
Property Owner Expenses:
gmnt, leasing, & operation
of Alameda Point
E3. CIC/ARRA Project
Related Debt:
GF Loan, Existing, and
New Lease Rev
Bond D/S
E4. AP Standard
Municipal Srvc Costs:
Maint. of roads, water,
public bldgs, Fire Stn5,
police, & others
1
R2. CIC/ARRA
Tax Increment:
Generated by APCP Project
R3. Land Sales
El. CIC/ARRA
Operations Expenses:
Share of Dvlpmnt Srvc
Dept.& Indirect Cost
Allocation to GF
E3. CIC/ARRA
Project Related Debt:
Retire GF Loan, Existing
and New Lease Rev
Bonds
....
....
.......................
........
R4. General Fund •
Revenues Generated by
APCP: City Pass Thru
Pmts, Utility Users, Sales
Tax, and others
Prepared by Keyser Marston Associates, Inc., 11/2/2003 12:40 PM, Fiscal Neutrality Diagram; dd
City of Alameda
.., General Fund
••••,,,...
......
••.. ......
E5. General Fund
Svc Costs Generated by
APCP: Police, fire, road
maint., park & rec. and
others
4. AP StandarTh
unIcipal Srvc Costs No
Allocable to APCP: Balance
Fire Stn5, collaborative-
police, sports cmplx
& others
..............................
..... ...
NOTICE 01 EXEMPTION
To:
Office of Planning and Research
1400 Tenth Street, Room 121
Sacramento, CA 95814
or x County Clerk
County of Alameda
1225 Fallon Street
Oakland, CA 94612
Exhibit B
From: City of Alameda
Planning & Building Department
City Hall, Room 190
2263 Santa Clara Ave.
Alameda, CA 94501
Project Title: Execution of a Conditional Acquisition Agreement by and between the City of Alameda the Community
Improvement Commission and the Alameda Reuse and Redevelopment Agency and Alameda Community Partners, LLC
- for property at Alameda Point.
Project Location - City: Alameda (former Alameda Naval Air Station) Project Location - County: Alameda
Description of Project: The Community Improvement Commission of the City of Alameda has entered into a
Conditional Acquisition Agreement with the City of Alameda, the Alameda Reuse and Redevelopment Authority, and
Alameda Point Community Partners, LLC. The Conditional Acquisition Agreement establishes certain terms, which
would govern the process under which the City and/or the Reuse Authority would consider whether to entitle, sell and
develop the Alameda Point property. The Agreement grants to Alameda Point Community Partners the exclusive right to
seek development entitlements and, contingent on several factors including full compliance with the California
Environmental Quality Act and discretionary decisions by the City on whether to permit development on the site and ;C
so, what type.
Generally, the Conditional Acquisition Agreement provides terms regarding the duration of the Agreement; the public
goals to be achieved at the project site; the financial terms for the acquisition of the project site; funding of
predevelopment activities; obligations of the parties to consider and study proposed development entitlements, the types of
issues that must be addressed by a subsequent Disposition and Development Agreement if one is approved; restrictions on
assignment, transfer or mortgage and various other provisions. The Agreement expressly acknowledges that it does not
comprise a plan, permit or entitlement of any kind, and that it does not grant or otherwise, directly or indirectly, give rise
to development rights or rights to entitlements or permits with respect to the project site. It also expressly acknowledges
that preparation and adoption by the City of Alameda of an EIR sufficient under CEQA to approve development
entitlements is a condition precedent to the conditional option becoming effective.
Name of Public Agencies Approving Project: City of Alameda, Alameda Reuse and Redevelopment Authority ,
Alameda Community Improvement Commission.
Name of Person or Agency Carrying Out Project: N/A
Exempt Status: (check one)
Ministerial (Sec. 15268)
Declared Emergency (Sec. 15269(a))
Emergency Project (Sec. 15269(b)(c))
Categorical Exemption. State type & section number.
Statutory Exemptions. State code number:
X Other basis:
Reasons why project is exempt:
The executio ci of the Conditional Acquisition Agreement is exempt from the requirements of the California Environmental
Quality Act CEQA) because this action does not constitute approval of a project. Because the execution of the
Conditional Acquisition Agreement neither commits the CIC to approve a project, nor constitutes an entitlement for use of
A project, this action is not an approval of a project, as defined by Public Resources Code sections 21065 and 21080 or
:EQA Guidelines sections 15352 and 15378. An action by a public agency, which is not an approval of a project and
oes not commit the public agency to a particular course of action, is exempt from the requirements of CEQA.
Lead Agency Contact Person: Greg Fuz
Area Code /Telephone: (510) 748 -4600
If filed by applicant:
1. Attach certified document of exemption finding.
2. Has a notice of exemption been filed by the public agency approving the project: _ Yes _ No
Date Received for Filing:
Date Posted:
Date Removed:
Signature:
Name /Title: Greg Fuz
Planning Director
GA PLANNING\SPECPROJ\MARGARET\CEQA DOCS\NOTICES OF EXEMPTION ALAMEDA\NOTICE OF EXEMPTION BV.DOC
I, the undersigned, hereby certify that the foregoing Joint Resolution was duly and regularly
adopted and passed by the City Council, Community Improvement Commission, and the Alameda
Reuse and Redevelopment Authority of the City of Alameda in a Special City Council, Community
Improvement Commission, and Alameda Reuse and Redevelopment Authority meeting assembled
on the 19th day of November, 2003, by the following vote to wit:
AYES: Councilmembers/Commissioners/Boardmembers Daysog, Matarrese,
and Mayor /Chair Johnson - 3.
NOES: Councilmembers/Commissioners/Boardmembers Gilmore and
Kerr —2 .
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official seal of said City this
20th day of November, 2003.
Lara Weisiger
City Clerk, City of Alameda
Secretary, Community Improvement Commission
Burly Johnson
Mayor, City of A
Chair, Community
Chair, Alameda
eda
rov‘inent Commission
se and Redevelopment Authority