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2001-12-10 ARRA PacketAGENDA Special Meeting of the Governing Body of the Alameda Reuse and Redevelopment Authority * * * * * * ** Alameda City Hall Council Chamber, Room 390 2263 Santa Clara Avenue Alameda, CA 94501 1. ROLL CALL 2. Public Comment on Agenda Items Only. Tuesday, December 18, 2001 Meeting will begin at 6:35 p.m. City Hall will open at 6:20 p.m. Anyone wishing to address the Board on agenda items only, may speak for a maximum of 3 minutes per item. 3. CLOSED SESSION OF THE ARRA TO CONSIDER 3 -A. CONFERENCE WITH REAL PROPERTY NEGOTIATOR Property: Alameda Naval Air Station Negotiating parties: ARRA, Navy and Alameda Point Community Partners Under negotiation: Price and Terms 4. Announcement of Action Taken in Closed Session, if any. Adjournment Notes: • Sign language interpreters will be available on request. Please contact Lucretia Akil, ARRA Secretary, at 749 -5800 at least 72 hours before the meeting to request an interpreter. • Accessible seating for persons with disabilities (including those using wheelchairs) is available. Minutes of the meeting are available in enlarged print. AGENDA Special Meeting of the Governing Body of the Alameda Reuse and Redevelopment Authority * * * * * * ** Alameda City Hall Council Chamber, Room 390 2263 Santa Clara Avenue Alameda, CA 94501 Monday, December 10, 2001 Meeting will begin at 5:00 p.m. City Hall will open at 4:45 p.m. 1. ROLL CALL 2. CONSENT CALENDAR 2 -A. Approval of the minutes of the regular meeting of September 5, 2001. 2 -B. Approval of the minutes of the special meeting of November 13, 2001. 3. ACTION ITEMS 3 -A. Recommendation from the Development Services Director to approve Legally Binding Agreement with Alameda Pont Collaborative Provider and authorize the Executive Director to execute individual LBA's with residential providers, and authorize the Executive Director to administratively approve a Management Plan for non - residential uses, and to execute individual LBA's with non - residential Providers thereafter. 3 -B. Report and recommendation from the Development Services Director regarding the APAC's recommendation to retain the Admiral's House for cultural and civic uses, and recommendation to undertake a Business Plan to study feasibility. 4. ORAL REPORTS 4 -A. Oral report from APAC. 5. ORAL COMMUNICATIONS, NON - AGENDA (PUBLIC COMMENT) (Any person may address the governing body in regard to any matter over which the governing body has jurisdiction that is not on the agenda.) 6. COMMUNICATIONS FROM THE GOVERNING BODY 7. ADJOURNMENT ARRA Agenda - December 10, 2001 Page 2 This meeting will be cablecast live on channel 15. The next regular ARRA meeting is scheduled for Wednesday, January 2, 2002. Notes: • Sign language interpreters will be available on request. Please contact the ARRA Secretary, Lucretia Akil at 749- 5800 at least 72 hours before the meeting to request an interpreter. • Accessible seating for persons with disabilities (including those using wheelchairs) is available. • Minutes of the meeting are available in enlarged print. • Audio tapes of the meeting are available for review at the ARRA offices upon request. APPROVED MINUTES OF THE REGULAR MEETING OF THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY Wednesday, September 5, 2001 The meeting convened at 5:30 p.m. with Chair Appezzato presiding. 1. ROLL CALL Present: Ralph Appezzato, Mayor, City of Alameda Albert DeWitt, Councilmember, City of Alameda Barbara Kerr, Councilmember, City of Alameda Tony Daysog, Councilmember, City of Alameda Absent: Beverly Johnson, Councilmember, City of Alameda 2. CONSENT CALENDAR 2 -A. Approval of the minutes of the regular meeting of August 1, 2001. 2 -B. Approval of the minutes of the special meeting of August 9, 2001. 2 -C. Member DeWitt requested that this item be removed from the Consent Calendar under Action Items. Member DeWitt moved approval of the Consent Calendar. The motion was seconded by Member Kerr and passed by the following voice vote: Ayes -4; Noes -0; Abstentions -0. 3. ACTION ITEMS 3 -A. Recommendation to Adopt Resolution Approving the Transfer of the Electrical Utility Distribution System located at Alameda Point to the City of Alameda. There were no public speakers. The public hearing was closed for Authority discussion. Member DeWitt asked how would money be saved by transferring the Electrical Utility Distribution System? Doug Yount, Development Services Director responded that it is a savings to the ARRA budget, which currently pays $40,000 a month directly to Alameda Power and Telecom (AP &T) for these services. AP &T would carry these costs through their rate structure so the ARRA will no longer be responsible for making those payments. Member Kerr stated that if AP &T owns this utility system, they would be better able to plan and take care of it more efficiently. Doug Yount stated that it makes sense that the entire electrical distribution system be controlled by AP &T and not have it split separately. Member DeWitt moved approval of the recommendation. The motion was seconded by Member Kerr and passed by the following voice vote: Ayes -4; Noes -0; Abstentions-O. 4. ORAL REPORTS 4 -A. Oral report from APAC. Diane Lichtenstein, Vice -chair APAC, stated that they are presently following the General Plan Amendment that will be folded into the General Plan. APAC will also follow the plan as it emerges from the Master Developer. S. ORAL COMMUNICATIONS, NON- AGENDA (PUBLIC COMMENT) (Any person may address the governing body in regard to any matter over which the governing body has jurisdiction, or of which it may take cognizance, that is not on the agenda.) None. 6. COMMUNICATIONS FROM THE GOVERNING BODY None. 7. ADJOURNMENT Chair Appezzato adjourned the meeting at 6:00 p.m. Respect N. lly, cretia Akil Secretary 2 APPROVED MINUTES OF THE SPECIAL MEETING OF THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY Tuesday, November 13, 2001 The meeting convened at 5:30 p.m. with Chair Appezzato presiding. 1. ROLL CALL Present: Ralph Appezzato, Mayor, City of Alameda Albert DeWitt, Councilmember, City of Alameda Beverly Johnson, Councilmember, City of Alameda Barbara Kerr, Councilmember, City of Alameda Absent: Tony Daysog, Councilmember, City of Alameda 2. CONSENT CALENDAR None. 3. ACTION ITEMS 3 -A. Request for ARRA Approval of Assignment of sublease of Buildings 774, 800, 804, CPO 14, CPO 23 and CPO 24 containing twelve dwelling units from United Indian Nations CDC to Alameda Point Collaborative. There were no public speakers. The public hearing was closed for Authority discussion. Debbie Potter, Base Reuse and Redevelopment Manager stated that United Indian Nations (UIN) CDC had requested that its sublease for 12 units be assigned to the Alameda Point Collaborative (APC). The sublease contains a procedure for assignment and UIN and APC submitted the required information. Staff has reviewed the infolination and determined the APC meets the requirements of an assignment pursuant to the sublease and that staff therefore recommends approval of the assignment. Member Johnson moved approval of the recommendation. The motion was seconded by Member DeWitt and passed by the following voice vote: Ayes -4; Noes -0; Abstentions -0. 3 -B. Request for the ARRA Governing Board to Transfer Authority to Enter Into an Interim Lease for a Nursery and Community Garden from University Avenue Housing to the Alameda Point Collaborative. There were no public speakers. The public hearing was closed for Authority discussion. Debbie Potter, Base Reuse and Redevelopment Manager stated that University Avenue Housing (UA) has requested that its authority to enter into a sublease for the Community Garden and Commercial Nursery be assigned to Alameda Point Collaborative. UA and APC recognize that the assignment of authority triggers the one -time substitution clause. UA has indicated that its core mission is to develop and operate affordable housing and that APC is the more appropriate organization to oversee the Community Garden and Nursery. Therefore, staff recommends approval of the requested transfer of interest in the sublease. Member DeWitt asked if various sites had already been considered prior to the selection of Parcel 99? Terri Highsmith, Assistant City Attorney responded that the site of the Community Garden and Nursery has not changed. The original sublease was not fully executed by UA. They are requesting the ARRA allow them to assign their sublease agreement to Alameda Point Collaborative and enter into an interim sublease agreement. Member Kerr stated that the Nursery should be located in a site other than Parcel 99, which could potentially be designated for market rate housing. Mayor Appezzato responded that the ARRA in the past has already approved the existing site and that the only action they are expected to take, is to approve the transfer of the lease from University Avenue Housing to Alameda Point Collaborative. Member Johnson asked if further research could be done for potential other sites. Attorney Highsmith responded that staff had already looked at seven (7) other sites and the ARRA Board has previously approved the existing site location for the Nursery. Debbie Potter stated that the ARRA could approve the lease assignment now, conditioned upon APCP's concurrence in the location of the Community Garden and Nursery. Member Johnson moved approval of the recommendation, pending approval from Alameda Point Community Partners agreement to the site location of the Community Garden and Nursery. The motion was seconded by Member DeWitt and passed by the following voice vote: Ayes -3; Noes -1; Abstentions -O. 2 4. ORAL REPORTS 4 -A. Oral report from APAC. None. 5. ORAL COMMUNICATIONS, NON - AGENDA (PUBLIC COMMENT) (Any person may address the governing body in regard to any matter over which the governing body has jurisdiction, or of which it may take cognizance, that is not on the agenda.) None. 6. COMMUNICATIONS FROM THE GOVERNING BODY None. 7. ADJOURNMENT TO CLOSED SESSION OF THE ARRA TO CONSIDER 7 -A. CONFERENCE WITH REAL PROPERTY NEGOTIATOR Property: Alameda Naval Air Station Negotiating parties: ARRA, Peralta Community College Under negotiation: Price and Terms Chair Appezzato announced the Board had met in special session and gave instructions to Real Property Negotiators. No action was taken. 7 -B. CONFERENCE WITH REAL PROPERTY NEGOTIATOR Property: Alameda Naval Air Station, West Housing Negotiating parties: ARRA, Alameda Point Collaborative, Alameda County Under negotiation: Price and Terms Chair Appezzato announced the Board had met in special session and gave instructions to Real Property Negotiators. No action was taken. 7 -C. CONFERENCE WITH REAL PROPERTY NEGOTIATOR Property: Alameda Naval Air Station Negotiating parties: ARRA and AUSD Under negotiation: Price and Terms Chair Appezzato announced the Board had met in special session and gave instructions to Real Property Negotiators. No action was taken. 3 The closed session was adjourned at 7:30 p.m. 8. ANNOUNCEMENT of ACTION TAKEN in CLOSED SESSION, if any. 9. ADJOURNMENT Respectfully, Lucretia Akil ARRA Secretary 4 Alameda Reuse and Redevelopment Authority Interoffice Memorandum December 7, 2001 TO: Honorable Members of the Alameda Reuse and Redevelopment Authority FROM: Doug Yount Development Services Director SUBJECT: Recommendation from the Development Services Director to Approve Legally Binding Agreement with Alameda Pont Collaborative Provider and Authorize the Executive Director to Execute Individual LBA's with Residential Providers, and Authorize the Executive Director to Administratively Approve a Management Plan for Non - residential Uses, and to Execute Individual LBA's with Non - residential Providers Thereafter BACKGROUND In 1996, the ARRA approved the form of a long -term lease to be used by the Alameda Point Collaborative ( "APC ") and each homeless housing provider which received the right to use a certain number of housing units to accommodate the needs of the homeless, pursuant to federal law. The long -term lease was to have a maximum term of 59 years, and that term would begin once the underlying real property was conveyed by the Navy to the ARRA. This long -term lease is referred to in federal parlance as the "Legally Binding Agreement" (LBA). The form of the LBA was negotiated with APC and Alameda County, and ultimately approved by the governing boards of APC, the County, the ARRA and HUD. Believing that the Navy would convey the real property within a few years after it began work on the Environmental Impact Statement to support the Record of Decision, the various provider members of the APC ( "Providers ") began to raise funding to implement their programs. When it became clear that their initial fund raising abilities outpaced the Navy's conveyance schedule, the APC turned to the ARRA to request that the various properties (186 housing units, 75 barracks units, a community garden and a few warehouse /commercial buildings) be leased to the various Providers under "interim" leases, in order to allow them to establish "site control" to secure their funding. The ARRA approved these requests of the various Providers between 1998 through the present, and as a result, most of the accommodations are operating under interim lease terms. Honorable Members of the December 7, 2001 Alameda Reuse and Redevelopment Authority Page 2 In 1999, in order to accommodate the development of East Housing and the FISC, staff negotiated with the APC to relocate most of their accommodations from East Housing to West Housing, "bought out" the interest of Operation Dignity in 125 barracks units, and set by agreement the APC's duty to contribute $3.6 million toward Alameda Point public infrastructure (through APIP 20% set aside funds) and contribute an agreed -upon public service fee to the City as part of their "fair share" of development. The APC and Providers will require continued funding and rely on fund raising, grants and loans to operate their various programs. In order to facilitate their intended application for continuing funding, the APC has requested that the City of Alameda allow the creation of parcel maps of the leasehold interests created by the interim leases or LBA and allow both the lease and the parcel maps to be recorded. In addition, the APC will in the future request that the ARRA, on a case -by -case basis, review and approve loan documents from their various grantors and lenders, and permit the leasehold interest to be used as collateral to secure any duty to repay the loan or honor the conditions of the grant. Because the 1996 form of the LBA does not provide cure rights to a lender and would appear to restrict a lender's ability to assign or sell the interest in the event of a foreclosure, the APC has requested that the ARRA amend the LBA to provide such lender protections. Additionally, the APC is also requesting that the ARRA be willing to convert and restate each Provider's interim lease into a restated and amended LBA, in order to facilitate its application for grant funding in December 2001. Because all of the interim leases are less than 15 years in length, the Providers would not otherwise qualify for the grant funding. As a result of the APC's need, staff and representatives of the APC have negotiated an Amended Legally Binding Agreement ( "Amended LBA "), which incorporates provisions of both the interim lease and the original form LBA, and provides the "cure" provisions and mortgagee provisions required by the private lenders. ANALYSIS/DISCUSSION A copy of the form of the Amended LBA is attached to this staff report as Attachment I. Using the form of the attached Amended LBA, individual LBA's will be entered into with each of the eleven Providers listed in Attachment II of the staff report. Each LBA will have an individual "use" description which will be tailored to the specific Provider and attached and incorporated by reference into their individual LBA as Exhibit "C." The Exhibit "C" uses will describe the particular uses that the individual Provider is permitted to engage in on the particular premises, consistent with the uses Honorable Members of the December 7, 2001 Alameda Reuse and Redevelopment Authority Page 3 described in the Reuse Plan and the Standards of Reasonableness. It is proposed that the ARRA approve the form of the Amended LBA and authorize the Executive Director to execute the individual residential LBA's (see Providers 1 through 6 on Attachment II), once the Exhibit "C" use provisions have been drafted, consistent with the uses provided in the Reuse Plan and the Standards of Reasonableness. The main substantive changes to the form of the LBA are detailed as follows: Elimination of the "Automatic Termination" Clause This provision, sometimes referred to as the "drop -dead termination" remedy, acted as an automatic termination of the lease and the interest if the Provider attempted to use the property for a purpose which is inconsistent with the stated purpose of the LBA. (Each LBA has a different purpose, depending on the program and use to be made of each property interest). Under the "drop dead termination" clause, neither the Provider, the APC, nor any lender have any right to "cure" the inconsistent use of the property. Even with the provision of cure rights to the lender for other breaches of the lease, the automatic termination risk under the LBA makes it commercially unfinancible, according to all lenders we negotiated with. 2. Creation of Standards for any Assignee - Provider This would be a new term in the LBA, which is beneficial to the ARRA. Under the 1996 LBA, the right to assign the interest in the leasehold is very restrictive and the ARRA must approve most assignment requests; however, there were no compliance standards for an assignee- provider. The lack of standards could expose the ARRA to a challenge that a failure to approve an assignment was unreasonably withheld. Under the proposed amendment, a proposed assignee to the interest in the residential housing units must have at least five years experience: • operating similar affordable housing developments; • in self - management or have a qualified property manager under contract with same experience; • in providing, either directly or indirectly, appropriate support services to the residential tenants; • showing (through records) proper maintenance and repair of the properties; and • showing evidence of proper accounting, a positive balance sheet and income and expense statements for the most recent 2 years, plus adequate reserve funds and acceptable monitoring reports from governmental agencies. Honorable Members of the December 7, 2001 Alameda Reuse and Redevelopment Authority Page 4 If the proposed assignee does not meet the above standards, the ARRA may disapprove the assignment and such withholding of consent is presumptively reasonable. These new standards are recommended by staff as a good "trade -off" against the loss of the "drop dead termination" clause, to help the ARRA insure some control over the success of the programs and management of the property. It should be noted that the amended LBA provides that in the event that the APC is the proposed assignee, the requirement that APC have five years of experience operating and managing affordable housing does not apply until December, 2006. However, in the event that the APC retains a third party management company, that company must have the required five years experience. This provision recognizes the fact that APC has been intimately involved in the overall management, operations, fund raising, provision of social services etc. on behalf of all of the providers at Alameda Point since at least 1997, but only begin directly operating and managing affordable housing on December 1, 2001. 3. New Cure Periods for Both the Provider and the Lender It is suggested that the Provider be given an opportunity to cure any defaults of the lease agreement. The 1996 LBA did not contain any specific cure provisions, although they were implied (except in the event of a use inconsistent with the LBA). The proposed cure period is 10 working days after notice is given by the ARRA, or if more than 10 working days would be required to effect a cure, then the Provider must request it within 10 working days. This is standard cure language and staff recommends this provision, as it would not impair the ARRA's interests in performance under the LBA. In addition, it is suggested that the lender be given specific cure rights in addition to the Provider's rights. The lender is provided an additional 30 days opportunity to cure a Provider default or otherwise begin the foreclosure process. This is a commercially reasonable provision, and given the ARRA's approval authority over any assignee- -even an assignee in foreclosure- -staff believes this lender remedy will not impair the ARRA's interests in performance under the LBA. 4. Commercial Unlawful Detainer Right of the ARRA for APC Failure to Pay its Fees This is an important remedy that the ARRA currently possesses in the interim lease. The Amended LBA retains the ARRA' s right to a commercial unlawful detainer in the event that the APC or its Provider fails to pay the public service fees, any possessory interest taxes due, or any other fees. Accordingly, all fees owed by the provider are considered as "Rent" under the LBA. Honorable Members of the December 7, 2001 Alameda Reuse and Redevelopment Authority Page 5 5. Creation of an Expanded Remedy Section The Amended LBA retains the current remedies that the ARRA has under the interim lease, including the express right to terminate the lease in the event of a breach which is not cured or curable. 6. Elimination of the ARRA's Right to Terminate for "Governmental Purposes" Under the 1996 LBA, this provision gave the ARRA a unilateral right to terminate the LBA in exchange for the payment of unspecified relocation benefits paid to the Provider, as well as the provision of substitute housing units. What is proposed instead is to eliminate the provision entirely. Both the City and the CIC have condemnation powers, which either could choose to use should it ever become necessary to reuse the property for some other public purpose or permitted community redevelopment purpose. 7. Retaining All Environmental Control Provisions of Interim Lease Consistent with the interim lease, the Amended LBA would specify that the lease is "as is, where is," that the Provider is responsible for all maintenance, utilities and improvements, and that the Provider is responsible for any environmental contamination (such as lead based paint abatement and abatement of friable asbestos) which arises after it takes possession. The exception is for any environmental conditions that the Navy is responsible for remediating, and the proposed amendments make it clear that the Provider must give the Navy access at all times to perform any environmental abatement required. 8. Management Plan A Management Plan for residential uses is attached to the Amended LBA. It is a requirement under the Amended LBA that a Management Plan be in place prior to execution of the individual LBA's. The residential Management Plan, which is attached to the Amended LBA and this staff report for your information, was developed by the APC and has been reviewed by staff. The Amended LBA requires that any material revisions to the Management Plan concerning Property Maintenance Standards and certain eligibility criteria are subject to the prior approval of the Executive Director of the ARRA. In addition to the completed residential Management Plan, APC is preparing a Management Plan for its non - residential properties. Before any individual LBA for non - residential purposes (see Providers 7 through 11 on Attachment II) may be executed, the non - residential Management Plan must be completed. Staff proposes that the ARRA Board delegate to the Executive Director the Honorable Members of the December 7, 2001 Alameda Reuse and Redevelopment Authority Page 6 administrative authority to review and approve the Management Plan for non - residential uses, once it is completed by the APC, on the condition that its Property Maintenance provisions be in substantial compliance with the Property Maintenance standards set forth in the residential Management Plan. Staff also recommends the ARRA further authorize the Executive Director to execute the individual LBA's for the non - residential uses, once the Management Plan for the non - residential uses has been administratively reviewed and approved by the Executive Director. There are several benefits to approving an Amended LBA, with terms as described above: • These units help fulfill the City's obligation under the Housing Element to provide housing affordable to very low income people; • The APIP has pledged $3.6 million in 20% set -aside funds for infrastructure improvements at Alameda Point. Without the APC housing and its contractual obligation to provide its "fair share" of public infrastructure, these 20% funds could not be used for infrastructure and the cost of those improvements would be an additional burden on the master developer or the City or ARRA; • These units also qualify as "inclusionary housing" units within the APIP and the BWIP (because these redevelopment areas have been aggregated for affordable housing purposes), and may be "banked" and "sold" to future developers of housing in the BWIP to help satisfy their inclusionary housing requirements; • The revised LBA will enhance the providers' opportunities to secure financing, thereby ensuring a quality housing component at Alameda Point. Without financing, the project may limp along, potentially depressing surrounding properties; and • The revised LBA will bring closure to a number of outstanding issues and allow the ARRA to move forward and concentrate its efforts on negotiating a deal with the master developer. FISCAL IMPACT There is no fiscal impact to the ARRA to amend the form of LBA as described above. However, it will enhance APC's ability to secure additional funding to continue property renovation. Honorable Members of the December 7, 2001 Alameda Reuse and Redevelopment Authority Page 7 RECOMMENDATION It is recommended that the ARRA Governing Board: 1) Approve the form of the Amended LBA as attached; 2) Authorize the Executive Director to review and approve the Exhibit "C" use provisions and execute the individual LBA's with the residential Providers listed on Attachment II; 3) Authorize the Executive Director to review and approve a Management Plan for non- residential uses with Property Maintenance provisions substantially similar to those set forth in the residential Management Plan; and 4) Authorize the Executive Director to review and approve the Exhibit "C" use provisions and execute the individual LBA's with non - residential Providers listed on Attachment II, conditioned upon prior review and approval of a Management Plan for non - residential uses. DY /DP:la Attachments cc: City Manager City Attorney Assist. City Attorney Respectfully Submitted: Doug Yount Assistant Executive Director By: D ° . bie Potter Base Reuse and Redevelopment Manager H:U.AKIL\ARRA\STAFFREP\2001 \LBAAGT. W PD Attachment I LEGALLY BINDING AGREEMENT AND PROPERTY LEASE AMONG THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY, ALAMEDA COUNTY HOUSING AND COMMUNITY DEVELOPMENT DEPARTMENT, ALAMEDA POINT COLLABORATIVE, INC., AND [Note: To revise if Collaborative is the Provider] TABLE OF CONTENTS Page 1. PREMISES. 3 a. Description of Leased Property 3 b. LIFOC 3 2. TERM; COMMENCEMENT OF PROGRAM OPERATION 4 a. Term of the Agreement and Possession of the Premises 4 b. Possession of the Premises. 5 c. No Warranty by Government or the ARRA. 5 d. Date for Commencing Program Operation. 5 3. CONSIDERATION FOR USE OF PREMISES 5 a. No Base Rent. 5 b. Other Consideration 5 c. Contest Proceedings 7 d. No Obligation of ARRA. 8 e. When Due. 8 f. Sums Payable 8 g. Default Rate 8 h. Late Charge 8 i. Survival 9 j. No Cost to the ARRA 9 4. USE OF PREMISES 9 a. No Other Uses 9 b. Compliance With FOSL and Other Governmental Documents 9 c. Licenses 9 5. MANAGEMENT 10 a. Management Plan 10 b. Management Plan Provisions 10 c. Revisions to Management Plan 10 d. Dispute Resolution 10 6. ASSIGNMENT AND SUBLETTING. 12 a. Transfer 12 b. Reliance on Provider Skills and Reputation 13 c. Request for Transfer 13 d. ARRA and HCD Consent 14 1 TABLE OF CONTENTS (continued) Page e. Assumption and Release 15 f. Subleases 15 g. Binding Agreement 15 7. ALTERATIONS 15 a. Procedure 15 b. Disposition of Alterations 15 c. Asbestos 15 8. UTILITIES 16 a. Provision of Utilities 16 b. No Warranty 16 9. NO INTERFERENCE WITH NAVY OPERATIONS 16 10. MAINTENANCE AND SECURITY 16 a. Maintenance 16 b. Security Protection 17 c. Special Security Protection 17 d. Services 17 e. Dispute Resolution. 17 11. ENVIRONMENTAL PROTECTION PROVISIONS. 17 a. Compliance 17 b. Permits 17 c. Indemnity 17 d. Inspections 18 e. Hazardous Waste 18 f. Approved Plan 18 g. Reporting, Containment, Removal and Clean -up 18 h. Right of Entry 18 i. Compliance with Plan 19 j. Soil Disturbance 19 k. Addresses for Notification 19 1. DOD Component 19 m. Government Indemnity 19 n. Minimize Disruption 20 o. Navy Permits 20 P. Notice and Comment 20 q. Independent Contracting 20 ii TABLE OF CONTENTS (continued) Page r. Provider to Notify 20 s. Baseline Survey 20 12. ACCESS BY THE GOVERNMENT AND THE ARRA 20 13. COVENANTS OF PROVIDER. 21 a. Use of the Premises 21 b. Overloading 21 c. Machinery 21 d. Rules 21 e. Compliance with Laws 21 f. Outside Storage Prohibited 21 14. RULES AND REGULATIONS 21 15. INDEMNIFICATION 22 a. Indemnification by Provider of ARRA and HCD 22 b. Indemnification By Provider of Government 22 16. PROVIDER'S LIABILITY EXTENDS TO ITS CONTRACTORS AND SUBTENANTS 22 17. INSURANCE 22 a. All Risk 22 b. Provider's Insurance 22 c. Subcontractor's Insurance. 23 d. Policy Provisions 23 e. Delivery of Policies 24 f. Review and Revision of Insurance Provisions 24 g. Damage and Destruction and Use of Insurance Proceeds 24 18. LABOR PROVISIONS. 25 a. Equal Opportunity 25 b. Convict Labor 26 19. NOTICES 26 20. AUDIT 27 iii TABLE OF CONTENTS (continued) Page 21. MORTGAGES 27 a. Additional Definitions 27 b. Security Interests 28 c. Mortgagee Rights 28 d. Approval of Financing 28 e. Delivery to the ARRA 29 f. Disposition and Application of Insurance Proceeds 29 g. Rights Subject to Agreement 29 h. Required Provisions of any Mortgage 29 i. Notices to Mortgagee 29 j. Mortgagee's Right to Cure 30 k. Assignment by Mortgagee 31 1. Insurance Proceeds and Condemnation Awards 31 22. ESTOPPEL CERTIFICATE 31 23. AMENDMENTS TO THE AGREEMENT 31 24. FAILURE TO INSIST ON COMPLIANCE 32 25. WAIVER 32 26. NONDISCRIMINATORY PRACTICES 32 27. DISPUTE RESOLUTION 32 28. COVENANT AGAINST CONTINGENT FEES 32 29. OFFICIALS NOT TO BENEFIT 32 30. CONFLICTS OF INTEREST 32 31. OTHER LEGAL REQUIREMENTS 33 32. LIENS 33 iv TABLE OF CONTENTS (continued) Page 33. DEFAULTS 33 a. Failure to Pay 33 b. Transfers 33 c. Failure to Perform 33 d. Liquidation, Insolvency, Assignment for Benefit of Creditors 34 e. Bankruptcy 34 f. Appointment of Receiver 34 g. Attachment, Execution, Levy or Sale 34 h. Abandonment 34 i. Failure to Vacate 34 34. REMEDIES 34 a. The ARRA's Remedies 34 b. No Relief of Obligation 35 c. Cumulative 35 d. Payment of Fees and Expenses 35 e. Rights of Possession 35 f. The ARRA's Right to Cure 36 35. TERMINATION BY THE GOVERNMENT. 36 a. Termination by Government of the LIFOC for Breach 36 b. Indemnity 36 c. Termination by Government for Other Than Breach 37 36. TERMINATION BY ARRA 37 a. Before Program Operation 37 b. Termination after Program Operation Begins 38 37. TERMINATION BY PROVIDER 38 a. Notice 38 b. Reversion of Premises 38 38. VACATION OF PREMISES 38 39. SUBJECT TO EXISTING AND FUTURE EASEMENTS AND RIGHTS - OF -WAY 39 a. Easements and Rights -Of -Way 39 b. Further Grants by Government 39 v TABLE OF CONTENTS (continued) Page 40. INGRESS AND EGRESS 39 41. SURRENDER OF PREMISES 39 42. QUIET POSSESSION 39 43. CERTAIN RIGHTS RESERVED TO ARRA 40 a. Right to Show Premises 40 b. Right to Take Action 40 44. CONTROLLING LAW 40 45. TIME IS OF THE ESSENCE 40 46. WHOLE AGREEMENT 40 47. SUCCESSORS BOUND 40 48. SEVERABILITY 40 49. DISCLOSURES MADE 41 50. FURTHER ASSURANCES 41 51. NO THIRD PARTY BENEFICIARIES 41 52. HEADINGS 41 53. COUNTERPARTS 41 • vi LEGALLY BINDING AGREEMENT AND PROPERTY LEASE AMONG THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY, ALAMEDA COUNTY HOUSING AND COMMUNITY DEVELOPMENT DEPARTMENT, ALAMEDA POINT COLLABORATIVE, INC., AND [Note: To revise if Collaborative is the Provider] THIS LEGALLY BINDING AGREEMENT AND PROPERTY LEASE (hereinafter the "Agreement ") is entered into on , 2001 by and among the Alameda Reuse and Redevelopment Authority, a joint powers authority formed under California law, (hereinafter the "ARRA "), Alameda County, through its Department of Housing and Community Development, a political subdivision of the State of California (hereinafter "HCD "), the Alameda Point Collaborative, Inc., a California nonprofit public benefit corporation (hereinafter the "Collaborative ") [Note: To revise if Collaborative is the Provider], and a (hereinafter the "Provider ". Collectively all the signatories to this Agreement are referred to as the "Parties ". RECITALS: This Agreement is entered into upon the following facts, understandings and intentions of the Parties: WHEREAS, the Base Closure Community Redevelopment and Homeless Assistance Act of 1994 (the "Redevelopment Act ") requires that reasonable accommodations be made on closing military bases to meet the needs of the homeless and the Redevelopment Act further sets forth procedures and standards describing how such accommodations are to be made; and WHEREAS, the Alameda County Homeless Providers Base Conversion Collaborative (the "ACHPBCC ") was formed in 1994 to enable social service and housing providers who are serving the homeless of Alameda County to work in concert to access former federal military property; and WHEREAS, in February of 1995 the ARRA recognized ACHPBCC as the official organization representing homeless interests in the reuse process for the Alameda Naval Air Station ( "NAS "); and WHEREAS, the Collaborative [Note: To revise term if Collaborative is the Provider] is the successor in interest to the ACHPBCC; and 1 WHEREAS, HCD has provided substantial assistance to the Collaborative [Note: To revise if Collaborative is the Provider] by allocating staff resources to aid in administrative matters, to facilitate financing and to provide other technical assistance for the programs at the base that will provide valuable and essential services to homeless persons in Alameda County; and WHEREAS, a team representing public and nonprofit agencies, including current and prospective homeless service providers working with the Collaborative [Note: To revise if Collaborative is the Provider], negotiated a statement of policies and standards called the "Standards of Reasonableness" which delineate reasonable uses of property at the NAS for provision of services to the homeless, including provision of housing, jobs, economic development activity and occupancy and capital improvements; and WHEREAS, the ARRA found that the Standards of Reasonableness meet the requirements of the Redevelopment Act to accommodate the needs of the homeless in balance with the other needs that must be met, in particular by providing a mechanism to assure that specifically identified types of facilities would be assigned to homeless service providers without specifying particular structures to be used by each provider, thereby eliminating the possibility that environmental concerns at a particular site would adversely affect a specific program; and WHEREAS, the ARRA formally approved the Standards of Reasonableness on May 3, 1995; and WHEREAS, following negotiation and adoption of the Standards of Reasonableness, the Parties negotiated and developed the initial form of a legally binding agreement (the "Initial Form LBA ") to implement the Standards of Reasonableness and comply with the requirement in federal law that a proposed form of a legally binding agreement involving property to be used by homeless service providers be forwarded and approved by the U.S. Department of Housing and Urban Development ( "HUD ") together with the Community Reuse Plan; and WHEREAS, the Initial Form LBA was approved by HUD in 1996; WHEREAS, the ARRA, the Community Improvement Commission of the City of Alameda, the Housing Authority of the City of Alameda, the City of Alameda, HCD, and the Collaborative [Note: To revise if Collaborative is the Provider] entered into a Memorandum of Understanding, fully executed on February 22, 2000 (the "MOU "), to amend the Standards of Reasonableness and to address certain aspects of certain housing units; and WHEREAS, the ARRA formally approved the MOU on October 6, 1999; and WHEREAS, the ARRA, as lessee, and the United States of America, acting by and through the Department of the Navy (the "Government "), as lessor, entered into that certain Lease in Furtherance of Conveyance, dated as of June 6, 2000 (the "LIFOC "), covering a portion of the NAS which includes the Premises (as defined in Section 1 below); and 2 WHEREAS, the ARRA and Provider previously entered into that certain Agreement of Sublease Between the Alameda Reuse and Redevelopment Authority and [insert Provider] for the Sublease of Buildings [insert buildings leased under applicable sublease] and Adjacent Open Space and Parking Area at Alameda Point, dated as of (the "Interim Sublease "), pursuant to which Provider is currently in possession of the Premises; and WHEREAS, the Parties desire to amend and restate the Interim Sublease and combine it with the Initial Form LBA by entering into this Agreement to convey to Provider a longer term of interest in the Premises, initially as a subleasehold under the LIFOC then converting to a leasehold at the time of conveyance of the fee title to the Premises by the Government to the ARRA, on the terms and conditions provided in this Agreement; and WHEREAS, the ARRA has formally approved this Agreement on and WHEREAS, this Agreement amends, restates, and replaces the Interim Sublease in its entirety. NOW, THEREFORE, in consideration of the terms, conditions, and promises described in this Agreement, the Parties agree as follows: 1. PREMISES. a. Description of Leased Property. The ARRA does hereby lease, rent, and demise to Provider and Provider does hereby hire and rent from the ARRA that certain real property, including all improvements thereon, described in Exhibit A attached hereto and incorporated herein (collectively, the "Premises "). The land described in Exhibit A attached hereto shall be referred to herein as the "Land ", and the buildings located on the Land, constituting ( ) [insert correct square footage] square feet, shall be referred to herein as the "Buildings ". b. LIFOC. This Agreement is subject and subordinate to the LIFOC for so long as the LIFOC is in effect, a signed copy of which is attached hereto as Exhibit B. Provider acknowledges that until the time of conveyance of the fee title to the Premises by the Government to the ARRA and for so long as the LIFOC is in effect the ARRA's rights to the Premises arise solely under the LIFOC. i. Notwithstanding any provision of this Agreement, the ARRA and Provider hereby agree as follows: (A) Provider will not do or permit anything to be done in or on the Premises which will cause the occurrence of a default by the ARRA under the LIFOC; (B) if the LIFOC expires or is terminated for any reason other than conveyance of the fee title to the Premises by the Government to the ARRA, then this Agreement shall thereupon terminate, without any liability to the ARRA (unless such expiration or teuuuination is caused by a material default of the ARRA under the LIFOC that was not caused by Provider), as if such date were the scheduled expiration date of the Term (as defined in Section 2 below). The ARRA shall take all 3 necessary actions within the ARRA's control to keep the LIFOC in full force and effect during the Term prior to conveyance of fee title of the Premises by the Government to the ARRA. ii. The ARRA shall have no liability to Provider for the Government's defaults under the LIFOC. Provider agrees that the ARRA shall not be obligated to perform any of the Government's obligations under the LIFOC, except to the extent that such obligations are expressly made obligations of the ARRA under this Agreement. Provider further agrees that neither this Agreement nor any obligation hereunder, including the payment of Rent (as defined in Section 3(f) below), shall be affected by the Government's default under the LIFOC, except to the extent that the LIFOC is terminated, or unless such default causes the ARRA to breach the covenant of quiet enjoyment in favor of Provider contained herein. The ARRA reserves all rights to enforce the LIFOC, but agrees to make reasonable and diligent efforts to enforce the Government's obligations under the LIFOC, to the extent that Provider is a material beneficiary thereof. iii. So long as the LIFOC is in effect, in the event of any conflict in the rights of Provider under this Agreement and the rights of the ARRA under the LIFOC, the terms, conditions and covenants of the LIFOC shall control. iv. Provider represents that it received, read and is familiar with the terms of the copy of the LIFOC delivered to it by the ARRA. Notwithstanding the foregoing, or anything otherwise stated herein, it is expressly understood that all obligations of Provider relative to this Agreement and its use and occupancy of the Premises are contained in this Agreement, and that Provider shall have no other or further obligations to the ARRA or to the Government which are not expressly set forth in this Agreement. 2. TERM; COMMENCEMENT OF PROGRAM OPERATION. a. Term of the Agreement and Possession of the Premises. The term ( "Term ") of this Agreement shall commence as of the date first set forth above and shall continue for ( ) years until [insert date 59 years following commencement date of term of applicable Interim Sublease], unless sooner terminated as provided herein. i. It is the Parties' intent that this Agreement shall initially operate as a sublease of the ARRA's leasehold interest in the Premises pursuant to the LIFOC, and, as such, shall be subject to the LIFOC, and that, following conveyance of a fee interest in the Premises by the Government to the ARRA, and termination of the LIFOC, this Agreement shall automatically convert from a sublease to a lease of the Premises by the ARRA to Provider without further action of the Parties. ii. The total time that Provider occupied any or all of the Premises pursuant to the provisions of the Interim Sublease shall be counted as part of the otherwise applicable maximum term of this Agreement and in no event shall the occupancy provided by the Interim Sublease taken together with the term of this Agreement exceed fifty -nine (59) years. 4 b. Possession of the Premises. Provider is already in possession of the Premises pursuant to the Interim Sublease. Provider's possession began on [insert date]. Provider rehabilitated the Premises during the term of the Interim Sublease. [Note: to be modified for Providers who are not in possession prior to execution of the LBA.] c. No Warranty by Government or the ARRA. The Premises were delivered to Provider by the ARRA "as is, where is" and, as such, the ARRA and the Government make no warranty as to such facilities and property either as to their usability generally or as to their fitness for any particular purpose. d. Date for Commencing Program Operation. Pursuant to the Interim Sublease, Provider commenced operations on [insert date and revise for Bessie Coleman and others not in possession prior to execution of LBA]. Pursuant to the Interim Sublease, Provider applied for and obtained all permits, licenses, and permissions required to occupy and use the Premises for the purposes set forth in the Interim Sublease and this Agreement before occupying the Premises. Such permits, licenses, and permissions shall include but not be limited to a certificate of occupancy from the City of Alameda. 3. CONSIDERATION FOR USE OF PREMISES. a. No Base Rent. The consideration for the possession and occupancy of the Premises is use of the Premises to provide services to the homeless in satisfaction of the provisions of the Redevelopment Act. In compliance with the Redevelopment Act, no monetary consideration in the nature of base rent or lease payments is required or provided for in this Agreement. b. Other Consideration. Although Provider need not make any payments in the nature of base rent or lease payments, certain payments connected with the use of the Premises must be made by Provider as consideration for the use of the Premises, as follows: i. Taxes, Assessments, and Fees. Provider shall pay any and all taxes, assessments, and fees levied upon the Premises or its possession, use, and occupancy of the Premises. A. Taxes. Provider shall pay all Taxes (as hereinafter defined) levied or imposed against the Premises during the Term. (1) "Taxes" shall mean all taxes, assessments and governmental charges, whether federal, state, county or municipal, and whether general or special, ordinary or extraordinary, foreseen or unforeseen, imposed upon the Rent (as hereinafter defined), the Premises, the Buildings, any possessory interest therein, or their operation, whether or not directly paid by the ARRA. Taxes shall not include income taxes, excess profit taxes, franchise taxes, or other taxes imposed or measured on or by the income of the ARRA from the operation of the Premises, provided, however, that if, due to a future change in the method of taxation or assessment, any income, profit, franchise or other tax, however designated, shall be imposed in substitution, in whole or in part, for (or in lieu of) any tax, assessment or charge 5 which would otherwise be included within the definition of Taxes, such other tax shall be deemed to be included within Taxes as defined herein to the extent of such substitution. There shall be added to Taxes the expenses of any contests (administrative or otherwise) of Taxes incurred during the taxing year, but only to the extent such contests result in a reduction of Taxes for such year or any other year during the Term. Provider shall pay to the appropriate governmental authority any use, possessory interest, and/or occupancy tax applicable to the Premises. In the event that the ARRA is required by law to collect such tax, the ARRA shall promptly notify Provider of the amount due and the due date. Provider shall pay such use and occupancy tax to the ARRA as Rent no later than five (5) business days prior to the due date required by applicable law and the ARRA shall remit any amounts so paid to the ARRA to the appropriate governmental authority. (2) The interest created by this Agreement may at some time be subject to property taxation under the laws of the State of California. If property taxes are imposed, the party in whom the possessory interest is vested may be subject to the payment of the taxes levied on such interest. This notice is included in this Agreement pursuant to the requirements of Section 107.6(a) of the Revenue and Taxation Code of the State of California. (3) The ARRA shall not contest the application(s) by Provider for exemption from the payment of any Taxes. (4) Provider, at its sole cost and expense, shall have the right to contest the amount or validity of any Taxes by appropriate proceedings under applicable law promptly initiated and conducted in good faith and with due diligence, at its sole cost and expense; provided, that (a) that neither the Premises, nor any part thereof or interest therein, will be in danger of being sold, forfeited, terminated, canceled or lost, (b) Provider shall have furnished such security as may be required in such proceedings or as may from time to time be reasonably requested by the ARRA in connection with such proceedings, and (c) the ARRA shall not be in danger of being subjected to fines, penalties or criminal liability as a result of such contest. Neither the ARRA nor the Premises may be subjected to any liability for the payment of any fines, penalties, costs, fees, including attorneys' fees, or expenses in connection with any such proceeding, and Provider covenants to indemnify, defend and hold harmless the ARRA and the Premises from any such fines, penalties, costs, fees or expenses. B. Assessments. Without limiting the foregoing, and subject to Section 3(c) below, Provider shall pay any and all property assessments that may be levied upon the Premises or its possession, use and occupancy, but excluding any assessments for costs covered by the payments described in Section 3(b)(i)(C)(2) below. C. Fees. (1) In accordance with Section V of the Standards of Reasonableness and Section 2(c) of the MOU, commencing as of the date of execution of this Agreement Provider shall pay to the City a public service fee (the "Public Service Fee "), which shall be calculated in the amount of $.0125 (1.25 cents) per square foot of Building space leased per month for the Term and shall be paid in accordance with Section 3(e) below. 6 (2) The Parties acknowledge that prior to the enactment of the "Citywide Development Fee" pursuant to Alameda Municipal Code Section 27 -3 et seq., that the Collaborative [Note: To revise if Collaborative is the Provider] and Provider(s) had agreed to pay their fair share of the development of public infrastructure costs as set forth in Section 2(b) of the MOU. Payment of these obligations pursuant to Section 2(b) of the MOU shall constitute full satisfaction of Provider's obligation for payment of the Citywide Development Fee. Any payment by Provider pursuant to Section 2(b) of the MOU shall not be deemed "Rent" hereunder. (3) Provider shall be obligated to pay any and all other City fees for use, maintenance, repair, replacement, rehabilitation, or reconstruction of the Premises; such fees do not cover, and are in addition to, fees required to be paid by Provider pursuant to Section 2(b) of the MOU. The phrase "all other City fees" shall not include any payments to be paid by Provider pursuant to Section 2(b) of the MOU. ii. Utility Charges. A. Subject to Section 3(c) below, Provider shall pay connection or hookup charges imposed by any utility providing service to the Premises. B. Subject to Section 3(c) below, Provider and/or its subtenants or sub - subtenants shall have the obligation to pay any and all monthly service charges for utility service provided to the Premises and the ARRA shall have no obligation or liability therefor. iii. Maintenance Expenses. Provider shall pay for all required maintenance of the Premises and neither the ARRA, HCD, nor the Collaborative [Note: To revise if Collaborative is the Provider] shall have any obligation to perform or pay any maintenance expenses. The standards of maintenance required for the Premises are described in Section 10 below and in the Management Plan attached hereto as Exhibit E. iv. Capital Improvements. A. Provider shall pay for any substantial rehabilitation, improvements required to make structure habitable for initial occupancy, or any approved Provider - requested modifications made to the Premises. B. Provider shall pay for any improvements required to keep the Premises habitable, as well as any approved Provider - requested modifications made to the Premises. v. Provider shall pay any and all costs incurred by the ARRA in connection with any proceedings or actions by Provider to contest in whole or in part, detetniine or reduce, or seek exemption from, any Taxes, assessments, fees or utility charges. c. Contest Proceedings. The institution by Provider of any proceedings or actions to contest in whole or in part, determine or reduce, or seek exemption from, any Taxes, 7 assessments, fees or utility charges shall not constitute an Event of Default (as defined in Section 33 below), nor shall failure by Provider to pay any such Taxes, assessments, fees or utility charges, during such contest constitute an Event of Default, provided that any such contest was reasonable for Provider to have undertaken and Provider has complied with all applicable procedures (including, notwithstanding anything to the contrary in the foregoing and without limitation, payment of any such Taxes, assessments, fees or utility charges if required); and provided further that Provider shall not have the right to contest the fees described in Sections 3(b)(i)(C)(1) and (2) above. d. No Obligation of ARRA. In addition to the costs and expenses described above, Provider shall pay any and all other expenses that may be incurred in using the Premises. The ARRA, the County, and the Collaborative [Note: To revise if Collaborative is the Provider] shall have no obligation to pay any costs or expenses relating to the Premises whatsoever. e. When Due. i. Provider shall pay the Public Service Fee in two annual installments, respectively, on April 10 and December 10 of each year of the Term. The payment shall be made in accordance with the invoice provided by the ARRA and without any setoff, counterclaim or deduction whatsoever and shall be made at the ARRA's offices, or such other place as the ARRA shall direct. ii. Provider shall pay the Taxes, if any, directly imposed upon it in accordance with the instructions of the taxing entity. iii. In the event that Provider is obligated to pay to the ARRA Taxes, if any, originally imposed upon the ARRA, the ARRA shall promptly notify Provider of the amount due and the due date. Provider shall pay such Taxes to the ARRA as Rent no later than five (5) business days prior to the due date required by applicable law and the ARRA shall remit any amounts so paid to the ARRA to the appropriate governmental authority. All Taxes originally imposed upon the ARRA and payable by Provider with respect to the Premises shall be prorated on a per diem basis for any partial tax year included in the Term. Provider's obligation to pay Taxes during the last year of the Term shall survive the termination of this Agreement. f. Sums Payable. All sums payable by Provider under this Agreement shall be deemed rent ( "Rent "). g. Default Rate. If any portion of Rent to be paid by Provider to the ARRA shall be due and unpaid for more than fifteen (15) days, it shall thereafter bear interest at the per annum rate equal to two percent (2 %) per annum greater than the prime rate of interest announced from time to time by the Wall Street Journal, as the same may change from time to time (the "Default Rate "), from the due date until the date of payment thereof by Provider. h. Late Charge. If any payment of Rent or any part thereof to be paid by Provider to the ARRA pursuant to the terms of this Agreement shall become overdue for a period in excess of fifteen (15) days after written notice from the ARRA that the same is past due, a late 8 charge of five cents ($.05) for each dollar overdue shall be paid by Provider for the purpose of defraying the expense incident to handling such delinquent payment, together with interest from the date such payment or part thereof was due, at the Default Rate. Nothing herein or in the imposition or acceptance of a late charge by the ARRA shall be construed as a waiver of any rights of the ARRA arising out of any default of Provider; the right to collect any late charge or interest is separate and apart from any rights or remedies of the ARRA relating to any default by Provider. i. Survival. The obligation of Provider with respect to the payment of Rent accruing during the Term shall survive the termination of this Agreement. J. No Cost to the ARRA. Provider hereby acknowledges and agrees that the ARRA is not responsible for any costs, charges, expenses and outlays of any nature whatsoever arising from or relating to the Premises, or the use and occupancy thereof, or the contents thereof or the business carried on therein, and that Provider shall pay all charges, impositions, costs and expenses of every nature and kind relating to the Premises except as expressly otherwise agreed herein. As set forth in this Agreement, all costs of maintenance and repair of the Premises, all costs of insuring the Premises, and all Taxes allocated to the Premises shall be paid by Provider. Notwithstanding anything contained in this Agreement to the contrary, Provider shall have no obligation to make any capital or extraordinary improvements or repairs to the Premises or to perform any environmental remediation of or at the Premises, except as and to the extent provided in Section 11 hereof, or to the extent any of the same is necessitated by Provider's negligence or willful misconduct or results from Provider's misuse of hazardous materials. 4. USE OF PREMISES. The sole purpose for which the Premises may be used, by Provider or authorized contractors, subcontractors or licensees of Provider, is to provide for [insert brief description of particular program] as described more fully in Exhibit C [Provide in Exhibit C more detailed description of particular program and permitted subleasing pursuant to Section 6(f) below] attached hereto and incorporated herein by this reference. a. No Other Uses. The Premises shall not be used for any other purposes without the prior written approval of the ARRA. b. Compliance With FOSL and Other Governmental Documents. Any use or uses of the Premises shall comply with all terms and conditions of this Agreement and any deed restrictions recorded against the Premises in connection with the transfer of the fee interest in the Premises by the Government to the ARRA and, for so long as the LIFOC is in effect, with the Findings for Suitability to Lease ( "FOSL ") for the Premises under the LIFOC and all conditions expressed therein as well as all conditions expressed in any Categorical Exclusion or other environmental action with respect to the uses of the Premises prepared for compliance with the National Environmental Protection Act. A copy of the Categorical Exclusion is attached hereto as Exhibit D. A copy of the FOSL is available for review at the ARRA offices during normal business hours. c. Licenses. If a license of any kind, including evidence of registration, is required of Provider, its employees, agents or subcontractors by federal or state law, including by 9 way of example and not by way of limitation, a license to operate a day care facility, a license to practice one of the healing arts, or a license to operate a motor vehicle, to carry out an activity Provider intends to undertake or is undertaking, Provider warrants that it has or will obtain the required license before undertaking the activity for which the license is required and that it will keep the license in good standing during all the time the license is required and that it will post and maintain any applicable bond in accordance with all applicable laws and regulations. 5. MANAGEMENT. a. Management Plan. A management plan (the "Management Plan ") has been prepared, the current version of which is attached hereto as Exhibit E for reference purposes only. b. Management Plan Provisions. The Management Plan shall include the following: i. Inspection and maintenance obligations, including but not limited to, preventative maintenance plan and scheduling, including exterior building appearance, and the roof of all structures that are a part of the Premises, landscaping, trash and recycling, pest control program, plumbing, heating and electrical systems. ii. Provisions for residential applications, if applicable, and eligibility criteria; on -site staff, if appropriate; house rules; and other similar matters. c. Revisions to Management Plan. Provider and the Collaborative [Note: To revise if Collaborative is the Provider.] may from time to time revise the Management Plan to respond to program changes and changes in community conditions and circumstances; provided that revisions to Section 4.3(r) (certain tenant eligibility criteria) of the Management Plan and material revisions to Section 8 (Property Maintenance) of the Management Plan shall be subject to the approval of the Executive Director of the ARRA upon consultation with HCD, which approval shall not be unreasonably withheld. The Executive Director of the ARRA shall use good faith efforts to approve or disapprove such revisions within thirty (30) days of request thereof. d. Dispute Resolution. If a dispute arises regarding the application or interpretation of the Management Plan during the term of Provider's possession and use of the Premises, the following procedure shall be followed: i. Initial Meeting of an ARRA Staff Member and a Representative of Provider. The staff member of Provider designated by it to administer the program being operated at the Premises shall request a meeting with the staff member who has been designated by the ARRA as the contract administrator for this Agreement to discuss the dispute. If a resolution to the dispute is reached as a result of this meeting, the resolution shall be reduced to writing and shall be signed by both the ARRA staff member and Provider's representative. ii. Review of Written Statements of Unresolved Disputes. If resolution of the dispute is not reached as a result of the meeting described in Section 5(d)(i) above, the ARRA staff member and Provider's representative shall state in writing the nature of 10 the dispute as each understands it and shall submit the written statement to the Manager of HCD or such other HCD staff member as has been designated to act on behalf of the Manager for purposes of this process (hereinafter the "HCD Manager ") and the Housing Development Manager of the City of Alameda or such other representative of the City as has been designated to act on its behalf for purposes of this process (hereinafter the "City Representative ") within five (5) calendar days of the meeting held pursuant to Section 5(d)(i) above. A. Resolution Reached Following Review of Written Statements. If the HCD Manager and the City Representative agree on a resolution of the dispute, they shall communicate the resolution in writing signed by both and provide the written resolution to the ARRA and Provider within ten (10) calendar days of receiving the written statements from the ARRA staff member and Provider representative. B. No Resolution Reached Following Review of Written Statements. If the HCD Manager and the City Representative do not agree on a resolution of the dispute, they shall advise the ARRA and Provider of that fact and of the need to have an additional meeting as described below. iii. Meeting with the HCD Manager and City Representative to Consider the Dispute. If either the ARRA staff member or Provider representative disagrees with the written resolution reached by the HCD Manager and the City Representative under Section 5(d)(ii) above, or if the HCD Manager and the City Representative did not reach an agreed resolution of the dispute under that provision, a meeting of the ARRA staff member and Provider representative together with the HCD Manager and the City Representative shall be held to further consider the dispute. A. Meeting Following Disagreement with a Resolution Reached by the HCD Manager and the City Representative. If a meeting of the ARRA staff member, Provider representative, HCD Manager, and City Representative is to be held following a resolution of the dispute reached by the Manager and the City Representative because either the ARRA staff member or Provider representative disagrees with the resolution reached by the HCD Manager and the City Representative, the request for such meeting shall be made by the ARRA staff member or Provider representative within three (3) business days of receiving notice of the result of the HCD Manager's and City Representative's consideration of the matter and the meeting shall occur within five (5) business days of receiving the request. B. Meeting Following Failure of the HCD Manager and City Representative to Reach a Resolution to the Dispute. If a meeting among the ARRA staff member, Provider representative, HCD Manager, and City Representative is to be held because the HCD Manager and City Representative failed to reach a joint resolution to the dispute, the HCD Manager and City Representative shall schedule the further meeting to occur within five (5) business days of their initial meeting to consider the matter and shall notify the ARRA staff member and Provider's representative of the date for the further meeting. C. Parties to the Further Meeting; Participation of a Fifth Person Trained in Dispute Resolution. The further meeting shall include a representative of the ARRA and one of Provider, who may but need not be the persons who attended the initial 11 meeting, the HCD Manager, the City Representative, and a neutral person trained and skilled in dispute resolution who is selected by the HCD Manager and City Representative. Unless the ARRA and Provider agree to the contrary, the services of the neutral third person shall be provided without cost to either of them. iv. Resolution Communication. The HCD Manager, City Representative, and third person shall reach a resolution of the dispute and shall communicate it in writing to the representatives of the ARRA and Provider who participated in the meeting with them within five (5) business days of the meeting. v. Written Resolution of a Dispute Shall Indicate Actions to be Taken and Consequence for Failure to Do So. Any written resolution of a dispute reached pursuant to this Section, whether the resolution involves the participation only by ARRA staff and a representative of Provider or involves participation of others, shall state specifically what action shall be taken and what action shall be refrained from being taken. If relevant, the written resolution shall specifically identify who is to be involved in effecting the resolution, how it is to be accomplished, and when particular actions are to be taken. In all cases the written resolution shall indicate the consequences of a failure to comply with the written resolution. Notification of third parties, including but not limited to lenders or other parties with a financial interest in the Premises, may be included as a part of the resolution of a dispute. No resolution of a dispute reached under this Section 5(d) may alter, amend, or revise the terms of this Agreement. vi. Dispute Resolution Process is Cumulative to Other Processes that Must or May be Followed. The dispute resolution process described in Sections 5(d)(i) through (v) above shall be cumulative and available in addition to any other process or procedure that may or must be used to address the matter involved in the dispute. vii. Consequence of Failure of Provider to Follow Dispute Resolution Process. If Provider does not take advantage of the process set out in this Section, does not provide the documents or notices described, or does not participate in any meeting held pursuant to this dispute resolution procedure, the position taken by the ARRA on the matter in dispute or at issue shall prevail. viii. Consequences of Failure of the ARRA to Follow Dispute Resolution Process. If the ARRA does not take advantage of the process set out in this Section, does not provide the documents or notices described, or does not participate in any meeting held pursuant to this dispute resolution procedure, the position taken by Provider on the matter in dispute shall prevail. 6. ASSIGNMENT AND SUBLETTING. a. Transfer. "Transfer" means the direct or indirect, voluntary or by operation of law, sale, assignment, subletting, encumbering, pledge or other transfer or hypothecation of Provider's interest in or rights with respect to the Premises or Provider's subleasehold (so long as the LIFOC is in effect) or leasehold estate therein. For purposes of this Section 6, any transfer or change in control of Provider by operation of law or otherwise shall be deemed a Transfer hereunder, including, without limitation, any merger, consolidation, 12 dissolution or any change in more than fifty percent (50 %) of the interests of Provider, whether in a single transaction or a series of related transactions and shall not be effective unless and until it is approved by the ARRA and HCD. b. Reliance on Provider Skills and Reputation. The ARRA and HCD are entering into this Agreement in reliance on the particular and unique skills and reputation of Provider, and the ARRA and HCD would not enter into this Agreement except for such particular and unique skills and reputation. Except as set forth in this Section 6, Provider shall not Transfer this Agreement or any interest under it; allow any Transfer of or any lien upon Provider's interest by operation of law; or permit the use or occupancy of the Premises or any part thereof by anyone other than Provider, Provider's program participants, and its employees, guests, or invitees. i. Provider may make a Transfer one time within six (6) months following Provider's execution of this Agreement to a separate legal entity formed by Provider for the sole or principal purpose of delivering the services at the Premises. Such Transfer shall not be subject to the provisions of Section 6(d) below, provided the original Transfer to Provider forming such separate legal entity was approved by the ARRA and HCD in accordance with this Section 6, and provided further that such Transfer to such separate legal entity shall be effective only if the Executive Director of the ARRA and HCD have approved such Transfer to such separate legal entity in writing, which approval shall not be unreasonably withheld. ii. Notwithstanding the foregoing definition of "Transfer ", Provider may make an Assignment for Security or Mortgage pursuant to Section 21 below, provided such a Transfer shall be effective only if approved by the ARRA and HCD. Approval by the ARRA and HCD of an Assignment for Security or a Mortgage shall be pursuant to Section 21 below and shall not be subject to the requirements of Sections 6(c) and (d) below, nor shall Transfers to a Mortgagee pursuant to a foreclosure or Trustee's sale be subject to Sections 6(c) and (d) below. Subsequent Transfers by a Mortgagee shall be subject to approval by the ARRA and HCD pursuant to this Section 6. iii. Provider may make any other Transfer with the prior written approval by the ARRA and HCD pursuant to this Section 6. c. Request for Transfer. Any request of Provider for consent to any Transfer shall be in writing and shall contain the name, address, and description of the business of the proposed Transferee, its most recent financial statement and other evidence of financial responsibility, its intended use of the Premises, and the terms and conditions of the proposed Transfer. With respect to proposed Transfers, as part of the written request for approval for a Transfer, Provider shall furnish to the ARRA and HCD the following information: (i) all instruments proposed to implement the Transfer transaction; (ii) a statement as to the existence of any litigation questioning the validity of the proposed Transfer transaction; (iii) a description of the proposed Transferee's qualifications and financial background; (iv) a description of the ownership structure and general business standing of the proposed Transferee; (v) if the transaction may result in an encumbrance on the Premises, full particulars of the terms and conditions of the encumbrance; and; (vi) such other information as the ARRA and HCD may reasonably require. In addition to other considerations that may affect the decision to approve a 13 Transfer, the ARRA and HCD shall consider whether it is compelled by Provider's financing and whether the resulting use of the Premises will be consistent with and fulfill the purposes of the Redevelopment Act and the reasons for entering into this Agreement with Provider. d. ARRA and HCD Consent. With respect to a proposed Transfer and without otherwise limiting the criteria upon which the ARRA or HCD may reasonably withhold its consent to any proposed Transfer, if the ARRA or HCD withholds its consent to any Transfer, the withholding of consent by the ARRA or HCD shall be deemed presumptively reasonable where: i. in the case of housing, the proposed Transferee does not have five (5) years of satisfactory experience operating similar affordable housing developments. The experience must include either satisfactory self - management of similar affordable housing developments or the proposed Transferee must contract with a qualified property management company that has at least five (5) years experience managing one or more similar affordable housing development. In addition, the experience must include the provision, either directly or through third party contract, of appropriate support services to residential tenants of a similar affordable housing development. Evidence of satisfactory experience operating similar developments shall include records related to such developments showing proper maintenance and repair and satisfactory physical condition, proper accounting, a positive balance sheet and income and expense statements for the most recent two (2) years, adequate reserve funds, and acceptable monitoring reports from governmental agencies; ii. in the case of non - housing facilities, the proposed Transferee or its property management company does not have five (5) years of satisfactory experience operating similar facilities. Criteria for evaluating satisfactory experience includes success at meeting program objectives, proper accounting records, a positive balance sheet and income and expense statements for the most recent two (2) years, adequate reserve funds, proper maintenance and repair and satisfactory physical condition of similar facilities, and acceptable monitoring reports from governmental agencies; iii. the proposed Transferee or its property management company has not demonstrated sufficient property management capability; or iv. the proposed Transferee's use of the Premises is not in compliance with the use of the Premises permitted under this Agreement. As part of the written request for approval from the ARRA and HCD as set forth in Section 6(c) above, Provider shall furnish to the ARRA and HCD such information as the ARRA and HCD may reasonably require. [Note: The following sentence to be deleted if Collaborative is the Provider.] Notwithstanding anything to the contrary in the foregoing, in the event the Collaborative is the proposed Transferee, the five (5) year criterion set forth in Section 6(d)(i) and (ii) above shall not be applied to the Collaborative (but may be applied to its property management company if such property management company is an entity separate from the Collaborative) until December 31, 2006. 14 e. Assumption and Release. If, with the consent of the ARRA and HCD pursuant to this Section 6, this Agreement is Transferred, the ARRA may, after default by Provider, collect Rent from the Transferee or occupant and apply the net amount collected to the Rent herein reserved. If the ARRA and the HCD consents to any such Transfer, it shall nevertheless be a condition to the effectiveness thereof that a fully executed copy of the Transfer document(s) be furnished to the ARRA and that any Transferee assumes in writing all obligations of Provider hereunder. No consent to any Transfer or occupancy shall be deemed a waiver of any of Provider's covenants contained in this Agreement nor the acceptance of the Transferee or occupant as Provider, nor a release of Provider from further performance of any covenants and obligations under this Agreement. Notwithstanding the foregoing to the contrary, provided that the ARRA and HCD have consented to a Transfer in writing, upon such approved Transfer, Provider shall be released from its obligations hereunder which arise subsequent to the effective date of the Transfer to the extent of the interest of Provider transferred and to the extent the Transferee of the Transfer assumes, in writing, Provider's obligations under this Agreement. f. Subleases. Sub - subleases (so long as the LIFOC is in effect) or subleases (after conveyance of the fee title to the Premises from the Government to the ARRA) of portions of the Premises shall be permitted if (i) each of such sub - subleases or subleases are consistent with the purposes of the program set forth in Exhibit C attached hereto and are expressly permitted pursuant to Exhibit C attached hereto, or (ii) with the prior written approval of the ARRA. g. Binding Agreement. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by Transferees and/or any successor in interest. 7. ALTERATIONS. a. Procedure. Prior to undertaking or doing any substantial alterations, improvements, or additions to the exterior or interior of the Premises (collectively, "Alterations "), or any portion thereof, Provider agrees to submit an application to the City of Alameda Building Department, and, if required by the City, to other City departments, for review and obtaining approval of such plans and proposals. All Alterations shall be done at the expense of Provider without any costs or obligation to the ARRA. In addition, there shall be no Alterations performed on the Premises without prior written authorization from the Government under the LIFOC to the extent required, and in the manner set forth, in Section 8 thereof. b. Disposition of Alterations. At the termination of this Agreement, all improvements, whether temporary or permanent in character, made by the ARRA or Provider in or upon the Premises shall become the ARRA's property and shall remain upon the Premises at the termination of this Agreement without compensation to Provider (excepting only Provider's movable furniture, fixtures, and equipment, and any Alterations approved by the ARRA as to which, at the time of such approval, the ARRA stated, in writing, that such Alterations had to be removed at the termination of the Interim Sublease or this Agreement, as applicable). c. Asbestos. The Government has provided to the ARRA an asbestos survey for the Buildings. Before Provider undertakes any Alterations which will disturb any known friable or non- friable asbestos in the Buildings, Provider shall set forth a plan stating how it will 15 handle any such asbestos, which plan must be reviewed and approved by the ARRA and the Government (so long as the LIFOC is in effect), before any such work which will disturb the asbestos in the Buildings can commence. Provider acknowledges that the Buildings may also have been painted with lead -based paint. Provider shall bear any and all costs of disturbance, removal and disposal of any asbestos or lead -based paint in the Buildings. The Government's asbestos survey for the Buildings is available for review by Provider at the ARRA's offices during normal business hours. 8. UTILITIES. a. Provision of Utilities. Utilities will not be furnished to Provider by the ARRA. Any separate metering of utilities required by the Government (so long as the LIFOC is in effect) or by any utility provider shall be the responsibility of Provider. Provider agrees that it will obtain needed utility services from any private or municipal supplier, who should during the Term, become capable of delivering such services to the Premises at commercial rates. b. No Warranty. Provider acknowledges that pursuant to the provisions of the LIFOC, the Government in no way warrants the conditions or adequacy of its utility systems for the purposes intended by Provider. 9. NO INTERFERENCE WITH NAVY OPERATIONS. Provider shall not conduct operations, nor make any alterations, that would interfere with or otherwise restrict Government operations or environmental clean -up or restoration actions by the Government, U.S. Environmental Protection Agency (the "EPA "), State of California, or their contractors. Environmental clean -up, restoration, or testing activities by these parties shall take priority over Provider's use of the Premises in the event of conflict. 10. MAINTENANCE AND SECURITY. a. Maintenance. Provider shall operate and maintain the Premises in accordance with the terms of this Agreement. Provider shall maintain, or cause to be maintained, the Premises in such manner as to keep the Premises in good, safe, and sanitary order, condition, and repair (permitting reasonable wear and tear) in compliance with applicable laws. Provider shall furnish all labor, supervision, materials, supplies, and equipment necessary to maintain the structure (including roof); exteriors, including paint and other wall finishes; fencing; plumbing, electrical, heating and cooling systems; exterior utility systems; pavement and landscaping (including grass cutting, shrub trimming and tree removal); interior portions of the Premises; pest control; security within the Premises; and refuse collection, removal, and disposal. For specifics as to such protection and maintenance required to be provided by Provider hereunder the following provisions shall apply. i. The degree of maintenance services to be furnished by Provider hereunder shall be that which is sufficient to maintain weather tightness, structural stability, protection from fire hazards or erosion, and elimination of safety and health hazards, which arise during the Term and which are not caused by the actions of the ARRA, the Government or their employees, contractors, or agents, so that the Premises and related facilities being serviced will remain in good condition, ordinary wear and tear excepted. Both the ARRA and the 16 Government (so long as the LIFOC is in effect), upon due notice, may inspect the Premises and related facilities to insure performance of the maintenance set forth herein. ii. Provider shall maintain or cause to be maintained all portions of the Premises used for residential occupancy in habitable condition in accordance with all applicable laws governing residential habitability, including, without limitation, providing, or causing the provision of, electrical, natural gas, water, and sewer utilities. iii. Debris and unused materials shall be promptly removed from the Premises and the Premises shall be kept reasonably clean and free of unused materials at all times. At completion of the Term, the Premises shall be left without containers, Provider's equipment, and other undesirable materials, and in an reasonably acceptable clean condition. b. Security Protection. Provider shall provide for all security and safety within the Premises. c. Special Security Protection. If Provider wishes to provide private security as a part of the service it provides, it may do so only after notifying the City of Alameda Police Department and complying with any requirement the Department has for private security services in the City. d. Services. The ARRA shall not be responsible for obtaining and providing any services which may be required in connection with Provider's use or occupancy of the Premises. e. Dispute Resolution. If a dispute arises regarding compliance with this Section 10, the procedure set forth in Section 5(d) above shall be followed. 11. ENVIRONMENTAL PROTECTION PROVISIONS. a. Compliance. Provider, its contractors, assigns, program participants, and employees shall comply with all applicable federal, state, and local laws, regulations, and standards that are or may become applicable to Provider's activities on the Premises. b. Permits. Provider, its contractors, assigns, program participants, or employees shall be responsible for obtaining, at its cost and expense, any environmental permits required for its operations under this Agreement for the Premises. c. Indemnity. In addition to the provisions of Section 15 below, Provider shall, and does hereby agree to, indemnify and hold harmless the Government, and the ARRA, from any costs, expenses, liabilities, fines, or penalties resulting from discharges, emissions, spills, storage, disposal, occurring during the Term, resulting from any action by Provider or its contractors, employees, subtenants or agents, or any parties using or occupying the Premises by or through Provider, or any other action by Provider, its contractors, employees, subtenants, agents, or assigns, or any parties using or occupying the Premises by or through Provider, giving rise to the Government or the ARRA liability, civil or criminal, or responsibility under federal, state, or local environmental laws. This provision shall survive the expiration or termination of 17 this Agreement, and Provider's obligations hereunder shall apply whenever the Government or the ARRA incurs costs or liabilities for Provider's actions. d. Inspections. Provider acknowledges that the Government's rights under the LIFOC specifically include the right for Government officials to inspect upon reasonable notice the Premises for compliance with environmental, safety, and occupational health laws and regulations, whether or not the Government is responsible for enforcing them. Such inspections are without prejudice to the right of duly constituted enforcement officials to make such inspections. The ARRA shall also have the right to inspect upon reasonable notice the Premises for compliance with environmental, safety, and occupational health laws and regulations, whether or not the Government or the ARRA is responsible for enforcing or complying with them. The Government has agreed, and the ARRA hereby agrees, that normally it will give the ARRA or Provider twenty -four (24) hours prior written notice of its intention to enter the Premises for inspection unless it determines the entry is required for safety, environmental, operations, or security purposes. Provider shall not have any claim against the Government nor the ARRA, nor any officer, agent, employee, or contractor thereof, on account of any interference with Provider's use of the Premises due to entry by the Government or the ARRA for such inspection pursuant to this Section 11(d) and /or the LIFOC. e. Hazardous Waste. Provider shall strictly comply with the hazardous waste permit requirements under the Resource Conservation and Recovery Act ( "RCRA "), or its state equivalent, and any other applicable environmental laws, rules or regulations. Except as specifically authorized by the Government and the ARRA in writing, Provider must provide at its own expense such hazardous waste management facilities, and hazardous waste storage facilities as it may need, complying with all laws and regulations. Government hazardous waste management facilities will not be available to Provider. f. Approved Plan. So long as the LIFOC is in effect, Provider shall have a Government- approved plan for responding to hazardous waste, fuel, and other chemical spills prior to the commencement of operations on the Premises. Such plans shall be independent of any Government Spill Prevention and Countermeasures Control Plan and shall not rely on use of Government personnel or equipment, nor the equipment or personnel of the ARRA. Should the Government provide any personnel or equipment, whether for initial fire response and /or spill containment, or otherwise on request of the ARRA or Provider, or because the ARRA or Provider was not, in the opinion of the contracting officer, conducting timely response actions, Provider agrees to reimburse the Government for its costs so long as the LIFOC is in effect. g. Reporting, Containment, Removal and Clean-up. Provider shall be responsible for reporting, containment, removal and clean-up of any land, air or water pollution to the extent required by applicable laws that emanates from any of the Premises due to the actions of Provider, its agents, employees, contractors, subcontractors, subtenants or assigns. h. Right of Entry. The government, including the EPA, and the State of California and their officers, agents, employees, contractors, and subcontractors have the right, upon reasonable notice to the ARRA and to Provider, to enter upon the Premises for the purposes enumerated in the following subsections. 18 i. To conduct investigations and surveys, including, where necessary, drilling, soil and water sampling, test pitting, testing soil borings and other activities related to the Installation Restoration Program ( "IRP "). ii. To inspect field activities of the Government and its contractors and subcontractors in implementing the IRP. iii. To conduct any test or survey required by the EPA or applicable state equivalent relating to the implementation of the cleanup program. iv. To construct, operate, maintain, or undertake any other response or remedial action as required or necessary under the IRP including, but not limited to, monitoring wells, pumping wells, and treatment facilities. i. Compliance with Plan. Provider agrees to comply with the provisions of any health or safety plan in effect under the l P during the course of any of the above - described response or remedial actions. Any inspection, survey, investigation, or other response or remedial action, to the extent practicable, shall be coordinated with representatives designated by the ARRA and Provider. Neither the ARRA nor Provider shall have any claim on account of such entries against the Government or any officer, agent, employee, contractor, or subcontractor thereof. J. Soil Disturbance. Provider shall not conduct or allow its contractors, agents or employees to undertake any subsurface excavation, digging, drilling or other disturbance of the surface without the prior written approval of the ARRA and so long as the LIFOC is in effect, the Contracting Officer of the Government. k. Addresses for Notification. So long as the LIFOC is in effect Provider shall provide to the ARRA, in the event of any Transfer of the Premises (other than sub - subleases or subleases pursuant to Section 6(f) above), in order that the ARRA may provide to the EPA Region 9 CERCLA Federal Facilities Section, and the State of California Department of Toxic Substances Control, at addresses which will be supplied and maintained by the Government, by certified mail, a copy of the assignment or sublease (as the case may be), dispatched within fourteen (14) days after the effective date of such transaction. The ARRA and Provider may delete the financial terms and any other proprietary information from the copy of any agreement of assignment or sublease furnished pursuant to this condition. 1. DOD Component. Department of Defense ( "DOD ") component accumulation points for hazardous and other wastes will not be used by Provider. Neither will Provider permit its hazardous wastes to be commingled with hazardous waste of the DOD component. m. Government Indemnity. It is understood that the responsibility of the Government to indemnify and hold harmless the ARRA, as Lessee under the LIFOC, and any Provider against toxic torts and other environmental claims shall be in accordance with Public Law 102 -484, the National Defense Authorization Act for Fiscal Year 1993, Section 330, as amended. 19 n. Minimize Disruption. The Government has agreed in the LIFOC to use its best efforts to minimize disruption of Provider's operations. o. Navy Permits. The Government has agreed in the LIFOC to undertake a timely review with the ARRA of those permits which the Government through the Department of the Navy holds or will likely come to hold, in order to determine which permits may be, to the fullest extent allowed under state and federal law, transferred to the ARRA as Lessee. At Provider's request, all of such permits shall be made available to Provider by the ARRA to the fullest extent allowed under state and federal law. Provider shall be fully liable for its compliance with such permits as are made available to it, including payment of fines and penalties incurred due to its actions. p. Notice and Comment. To minimize interference in the use of the Premises caused by implementation of response actions, the Government has agreed to provide the ARRA with timely notice and opportunity to comment upon any proposed response actions which may interfere with use of the Premises. The ARRA agrees to communicate with Provider regarding the foregoing and to promptly transmit to the Government all comments with respect thereto submitted to it by Provider. q. Independent Contracting. The provisions of Section 1 1(b) above do not prohibit the ARRA or Provider from independently contracting for transportation, treatment, storage or disposal of hazardous wastes with the same company which may have a contract with the Government for transportation, treatment, storage or disposal of hazardous wastes generated at the NAS, nor do they prohibit the carriage of properly manifested, marked and otherwise lawful containers of hazardous waste generated by the ARRA or Provider upon the same conveyance as hazardous waste generated by the Government. r. Provider to Notify. If Provider, during the performance of Alterations encounters pre- existing conditions which require the Government to take action in accordance with federal, state or local law to remove, remediate, correct, or abate hazardous substances, pollutants or contaminants, Provider shall promptly notify the Government, cease performance, and secure the work site. Vacation of the Premises, or any part thereof, will be directed pursuant to the provisions of Section 15 of the LIFOC. In the event that Provider is required to vacate the Premises, all Rent shall be abated for the period of such vacation. s. Baseline Survey. Provider acknowledges that the ARRA has provided to Provider an Environmental Baseline Survey version , dated [insert version and date] ( "EBS ") with respect to the Premises, prepared on behalf of the Government, in which EBS specifies that the Premises, and the lands underlying the Premises contain certain described hazardous waste. The ARRA has no other knowledge of any hazardous waste or any other hazardous substances, pollutants or contaminants with respect to the Premises. 12. ACCESS BY THE GOVERNMENT AND THE ARRA. a. In addition to access required under Sections 11(d) and 11(h) above, the Government and the ARRA shall be allowed access to the Premises at all reasonable times throughout the Term for any reasonable purposes upon prior written notice to Provider. The 20 Government (pursuant to Sections 9 and 13.3 of the LIFOC) and the ARRA will normally give Provider a minimum 24 -hour prior notice of an intention to enter the Premises, unless the entry is required on an emergency basis for safety, environmental, operations or security purposes. Provider shall ensure that a telephone roster is maintained at all times on on -call persons representing Provider who will be available on short notice, 24 hours a day, 365 days per year, and possess and have authority to use all keys necessary to gain access to the Premises, to facility entry in time of emergency. Provider shall ensure that the ARRA has a current roster of such on- call personnel and their phone numbers. Provider shall have no claim against the Government or the ARRA for exercise of their rights of access hereunder. Notwithstanding anything to the contrary in the foregoing, the rights of access to the Premises by the Government pursuant to this Section 12(a) shall terminate upon conveyance of the fee title of the Premises from the Government to the ARRA. b. Portions of the utility infrastructure may be located within the Premises. Provider agrees to allow the ARRA and any utility suppliers reasonable access to the Premises for operation, maintenance, repair and replacement of these utilities systems as may be required. 13. COVENANTS OF PROVIDER. a. Use of the Premises. Provider shall not make or permit to be made any use of the Premises or any part thereof which would directly or indirectly violate any federal, state or local law, ordinance, rule or governmental regulation. Provider shall not suffer or permit waste upon the Premises or any part thereof. b. Overloading. Provider shall not overload any floor. c. Machinery. Provider shall not install or operate any machinery, refrigerating or heating device or air - conditioning apparatus in or about the Premises which would impose unreasonable substantial additional loads on the facilities of the Buildings. d. Rules. Provider shall comply with the rules and regulations referred to in Section 11 above and Section 14 below (subject to the dispute resolution provision therein). Provider shall comply with all rules and regulations of the ARRA. e. Compliance with Laws. Provider shall comply, in all material respects, with all laws, enactments, rules, ordinances and regulations of all governmental authorities relating or applicable to Provider's occupancy of the Premises and all covenants, easements and restrictions governing the Premises. f. Outside Storage Prohibited. Outside storage is not permitted unless expressly authorized in writing by the ARRA. Any outside storage authorized by the ARRA shall be properly screened. For purposes of this provision, placement of recycling bins and garbage containers required by the recycling and garbage service providers in the City of Alameda shall not constitute outside storage. 14. RULES AND REGULATIONS. The ARRA shall have the right to make such reasonable rules and regulations as in the reasonable judgment of the ARRA may from time to time be necessary for the safety, appearance, care and cleanliness of the Premises, provided that 21 such rules do not unreasonably interfere with the operations of Provider which otherwise comply with the terms of this Agreement. If a dispute arises regarding compliance with rules promulgated by the ARRA pursuant to this Section 14, the procedure set forth in Section 5(d) above shall be followed. 15. INDEMNIFICATION. a. Indemnification by Provider of ARRA and HCD. Provider shall hold harmless, indemnify, and defend the ARRA and HCD and their officers, directors, agents, employees and representatives, from and against any suit, claim, demand, action, liability, judgment, cost, expenses or other fee arising out of any claim for injury or damage (hereinafter "Claim ") that results from or is in any manner based upon activities of Provider on the Premises during the Term, except to the extent that such Claim arises from and is attributable to the willful misconduct or negligence of the ARRA or HCD. Provider's liability shall extend to the performance of work or the use of the Premises by any contractor, subcontractor, or subtenant of Provider under this Agreement. b. Indemnification By Provider of Government. Provider shall hold harmless, indemnify, and defend the Government from and against any suit, claim, demand or action, liability, judgment, cost or other fee arising out of any claim for injury or damage that results from, or is in any manner, predicated upon activities of Provider on the Premises during the Term of this Agreement as a sublease under the LIFOC. However, pursuant to the LIFOC, this indemnity shall not extend to damages due to the sole fault or negligence of the Government or its contractors. 16. PROVIDER'S LIABILITY EXTENDS TO ITS CONTRACTORS AND SUBTENANTS. Provider's liability shall extend to the performance of work or the use of the Premises by any contractor or subtenant of Provider under this Agreement. 17. INSURANCE. a. All Risk. Provider shall, in any event and without prejudice to any other rights of the Government or the ARRA, except as expressly stated otherwise herein, bear all risk of loss or damage to any structures, improvements, personal property, and equipment situated upon the Premises, that are occupied or used by Provider or any of its officers, directors, agents, employees, representatives, subtenants, or assigns to the extent arising from, or in any manner connected with the occupation or use by Provider or its officers, directors, agents, employees, representatives, subtenants, or assigns, or by a risk customarily covered by insurance in the locality in which the Premises is situated with the understanding that insurance coverage for earthquake loss is not required under this Agreement. In the event of such loss or damage, the parties shall follow Section 17(g) below. b. Provider's Insurance. During the entire period this Agreement is in effect, Provider shall at its expense carry and maintain: i. On or before beginning any service or work called for by any term of this Agreement, Provider, at its expense, shall maintain for the duration of the Agreement, and 22 provide proof thereof that is acceptable to the Risk Manager of the ARRA the insurance specified in Section 17(b)(ii) below with insurers licensed in the State of California and under forms of insurance satisfactory in all respects to the Risk Manager of the ARRA. Endorsements naming the ARRA, HCD, and the Collaborative [Note: To revise if Collaborative is the Provider] as additional insureds and insurance certificates shall be provided to the Risk Manager of the ARRA prior to performing any work on or taking possession of the Premises. ii. All -risk Property Insurance. All -risk property insurance against the risks described in Section 17(b)(i) above in an amount not less than the replacement value of the Premises. iii. Commercial General and Automobile Liability. Public liability and property damage insurance, including but not limited to, insurance against assumed or contractual liability under this Agreement, with respect to the Premises and improvements thereon, to afford protection with limits of liability in amounts approved from time to time by the Government (so long as the LIFOC is in effect) and the ARRA, but not less than $3,000,000 in the event of bodily injury and death to any number of persons in any one accident, and not less than $1,000,000 for property damage. Such insurance shall name the ARRA and the Government (so long as the LIFOC is in effect) as additional loss payees or additionally named insureds. iv. Workers' Compensation. Provider shall carry statutory workers' compensation and employer's liability insurance or undertake self - insurance in accordance with the provisions of the California Labor Code for any and all persons employed directly or indirectly by Provider. The insurer shall waive all rights of subrogation against the ARRA and HCD for loss arising from work performed under this Agreement. c. Subcontractor's Insurance. During the entire period this Agreement shall be in effect, any contractor performing work on the Premises shall carry and maintain the insurance required below: i. Comprehensive general liability insurance, including, but not limited to, contractor's liability coverage and contractual liability coverage, of not less than $500,000 per occurrence with respect to personal injury or death, and with respect to property damage. ii. Automobile liability coverage of not less than $200,000 per person and not less than $500,000 per occurrence, and not less than $20,000 per occurrence for property damage. iii. Workers' compensation or similar insurance in the form and amounts required by law. d. Policy Provisions. All insurance which this Agreement requires Provider to carry and maintain or cause to be carried or maintained shall be in such form, for such amounts, for such periods of time, and with such insurers as the Government (so long as the LIFOC is in effect) and the ARRA may reasonably require or approve. All policies or certificates issued by the respective insurers for public liability and all -risks property insurance shall name the ARRA and the Government (so long as the LIFOC is in effect) as an additional 23 insured or loss payee, provide that any losses shall be payable notwithstanding any act or failure to act or negligence of the Government, provide that no cancellation, reduction in amount, or material change in coverage thereof shall be effective until at least thirty (30) days after receipt by the ARRA and the Government (so long as the LIFOC is in effect) of written notice thereof, provide that the insurer shall have no right of subrogation against the Government (so long as the LIFOC is in effect) or the ARRA, except, as to the ARRA, to the extent that bodily injury, including death, or property damage is caused by the acts or omissions of the ARRA, and be reasonably satisfactory to the ARRA and the Government (so long as the LIFOC is in effect) in all other respects. In no circumstances will the Provider be entitled to assign to any third party rights of action which the Provider may have against the Government (so long as the LIFOC is in effect). e. Delivery of Policies. Provider shall deliver or cause to be delivered promptly to the ARRA and the Government (so long as the LIFOC is in effect) a certificate of insurance evidencing the insurance required by this Agreement and shall also endeavor to deliver no later than thirty (30) days prior to the expiration of any such policy, a certificate of insurance evidencing each renewal policy covering the same risks. f. Review and Revision of Insurance Provisions. The Parties acknowledge the special significance that the potentially long term of this Agreement may have on the adequacy, affordability, and appropriateness of the insurance required in this Section. For this reason, the Parties agree that the Risk Manager for the ARRA shall be required to review the insurance requirements provided in this Section and revise those requirements as the Risk Manager deems necessary and appropriate to provide reasonable and adequate protection to the ARRA, HCD, and the Collaborative [Note: To revise if Collaborative is the Provider] against the risks assumed by them by entering into this Agreement. The decision of the Risk Manager to require different insurance coverages than those set forth in this Agreement shall be final unless appealed to the ARRA by a Provider within thirty (30) calendar days after notice of the Risk Manager's decision. The ARRA shall consider the appeal at a noticed meeting and shall make a decision thereon within thirty (30) calendar days of the appeal. The decision of the ARRA shall be based upon the considerations set forth herein and shall be final. g. Damage and Destruction and Use of Insurance Proceeds. In the event of damage or loss to the Buildings or improvements situated on the Premises, the following shall apply: i. Provider shall take all appropriate steps to erect necessary structures to preclude unauthorized access to the Premises and otherwise mitigate hazardous and unsafe conditions within the Premises caused by the damage and destruction. ii. Provider shall proceed to repair and replace the damaged and destroyed structures and improvements on the Premises, utilizing the proceeds of the insurance policies required above, except in the event Provider has the right to terminate this Agreement pursuant to Section 37 below and has elected to exercise such right. iii. - If Provider elects to terminate this Agreement in accordance with Section 37 below and so notifies the ARRA, the ARRA shall then have the option, to be 24 exercised by notice to the Provider within thirty (30) days of receipt of the notice of termination, and subject to the rights of Mortgagees, of accepting an assignment of the proceeds of the insurance policy in lieu of any obligation of Provider to either repair, or replace, the improvements or to perform demolition as set out below, and, effective upon notification of the ARRA's exercise of that option, Provider shall be released from further obligation to repair, replace or demolish improvements on Premises. iv. If the ARRA does not then exercise the option, Provider shall promptly obtain all necessary permits for, and carry out, the complete demolition of the damaged improvements and structures within the Premises, remove all debris from the Premises, clear the Premises of all damaged improvements, remove all safety hazards caused by the calamity and demolition, and return the damaged portion of the Premises to a level grade. v. In the event that damage and destruction to the Premises is the result of an event for which insurance coverage is not required hereunder, Provider shall have the option to repair the Premises, or if such damage and destruction render the Premises unusable for their intended purposes, to terminate this Agreement in accordance with applicable provisions herein by written notice to the ARRA. In the event Provider elects to terminate this Agreement under this Section, Provider shall be responsible for compliance with Section 17(g)(i) above and for removing its property from the Premises including all hazardous materials, and for reporting, containing, removing and cleaning up any land, air and water pollution resulting from the damage and destruction which is attributable to Provider's use of the Premises. Such responsibilities will be carried out by Provider in a timely manner in compliance with Section 11 above and other applicable provisions of this Agreement with due consideration for human health and safety and the protection of the environment. 18. LABOR PROVISIONS. a. Equal Opportunity. So long as the LIFOC is in effect, and with respect only to employment or employees at the Premises, Provider agrees as follows: i. Provider will not discriminate against any employee of Provider or applicant for employment because of race, color, religion, sex, or national origin. The employees of Provider shall be treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rate of pay or other forms of compensation, selection for training, including apprenticeship. Provider agrees to post in conspicuous places, notices to be provided by the applicable government agencies, setting forth the provisions of this nondiscrimination provision. ii. Provider will, in all solicitations or advertisements for employees placed by or on behalf of Provider, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. iii. Provider will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding a notice to be provided by the Government, advising the labor union or worker's representative of 25 Provider's commitments under this Equal Opportunity Clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment. iv. Provider will comply with all provisions of Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, and of the rules, regulations, and relevant orders of the Secretary of Labor of the United States of America. v. Provider will furnish all information and reports required by Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, and by the rules, regulations, and orders of the Secretary of Labor or pursuant thereto, and will permit access to its books, records, and accounts by the Government and the Secretary of Labor for purposes of investigating to ascertain compliance with such rules, regulations, and orders. vi. In the event of Provider's noncompliance with the Equal Opportunity Clause of this Agreement or with any said rules, regulations, or orders, this Agreement may be canceled, terminated or suspended in whole or in part and Provider may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. vii. Provider will include the above provisions in every sublease or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, as amended by Executive Order 1 1375 of October 13, 1967, so that such provisions will be binding upon each subtenant or vendor. Provider will take such action with respect to any subtenant or purchase order as the Government may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that in the event Provider becomes involved in, or is threatened with, litigation with the subtenant or vendor as a result of such direction by the Government, Provider may request the United States to enter into such litigation to protect the interests of the United States. b. Convict Labor. In connection with the performance of work required by this Agreement, Provider agrees not to employ any person undergoing a sentence of imprisonment at hard labor. 19. NOTICES. Notices required by this Agreement shall be personally delivered, given by facsimile or similar transmission so long as proof of successful delivery is provided by the transmission device, or mailed, postage prepaid, as follows: 26 To the ARRA: To HCD: Assistant City Manager, C &ED Alameda Reuse and Redevelopment Authority 950 West Mall Alameda, CA 94501 -5012 Facsimile: HCD Manager Alameda County Housing & Community Development 224 W. Winton Ave., Room 108 Hayward, CA 94544 Facsimile: 510-670-6378 [Note: To revise following if Collaborative is the Provider] To the Collaborative: To Provider: Alameda Point Collaborative, Inc. 451 Stardust Place Alameda, CA 94544 Facsimile: 510 -747 -1095 Facsimile: Each party shall provide the other parties with telephone, facsimile, or electronic notice as well as written notice of any change of address as soon as practicable. 20. AUDIT. This Agreement shall be subject to audit by the ARRA and by any and, so long as the LIFOC is in effect, all cognizant Government agencies. Provider shall make available to such agencies for use in connection with such audits all records, reports, reviews, audits, documents or other material which it maintains with respect to this Agreement and copies of all reports required to be filed hereunder. Provider will make these materials available for a period of three (3) years after teituination or expiration of this Agreement. 21. MORTGAGES. a. Additional Definitions. For purposes of this Section 21, the following terms shall have the meanings hereinafter set forth: in which Provider: i. "Assignment for Security" shall mean a transaction or transactions A. assigns all or any portion of its interest hereunder for the purpose of security ( "Assignment "); and /or B. executes a deed of trust ( "Deed of Trust ") with respect to all or any portion of its interest hereunder; and /or 27 C. executes a mortgage ( "Mortgage ") with respect to all or any portion of its interest hereunder. ii. "Mortgage" shall mean the encumbrance created by and all of the instruments of encumbrance in connection with an Assignment for Security, including, without limitation, a Mortgage, Deed of Trust, Assignment, reassignment or other instrument regardless of the form of the transaction; provided, however, the term "Mortgage" shall not include Regulatory Agreements (as defined below). iii. "Mortgagee" shall mean the secured party under a Mortgage regardless of the type of interest created in such secured party by the Assignment for Security under such Mortgage. iv. "Mortgaged Premises" shall mean Provider's interest under this Agreement encumbered by a Mortgage. v. "Regulatory Agreements" shall mean collectively those regulatory agreements or declarations of restrictions required in connection with federal, state, local or private funding sources that have been approved in writing by the ARRA. b. Security Interests. Provider may, subject to the requirements of this Agreement, mortgage its interest in the leasehold estate created by this Agreement and may grant a security interest in Provider's personal property situated thereon by a Mortgage. Provider shall have the right, subject to the terms and conditions of this Section 21, to enter into Assignments for Security or to enter into Regulatory Agreements so long as Provider (or a successor taking by assignment) remains liable, to the extent provided for in this Agreement, for performance of all Provider obligations hereunder. A Mortgage and/or Regulatory Agreement shall cover no interest in any real property other than (i) Provider's leasehold interest in the Premises or some portion thereof, (ii) any subleases or other occupancy agreements thereon, and (iii) any personal property of Provider. With the exception of the rights expressly granted to Mortgagees in this Agreement, the execution and delivery of a Mortgage and/or Regulatory Agreement shall not give a Mortgagee any greater rights in the Premises than those granted Provider hereunder. Subject to the ARRA's and the Government's (so long as the LIFOC is in effect) prior written consent, Provider shall have the right to record Mortgages, Regulatory Agreements, and any required parcel maps to facilitate the recording thereof. So long as the LIFOC is in effect, the ARRA shall use best efforts to obtain the consent of the Government to permit such recordation. c. Mortgagee Rights. Notwithstanding anything to the contrary set forth herein, and unless otherwise approved by the ARRA, any rights given hereunder to Mortgagees shall not apply to more than five (5) Mortgagees at any one time. Once a Mortgagee is designated by Provider, Provider shall not designate different or additional Mortgagees without the written consent of the Mortgagee first designated, or the earlier termination of such Mortgage. In the event that at any time there are more than five (5) Mortgagees, Provider shall notify ARRA in writing of the five (5) Mortgagees to which such rights should apply. d. Approval of Financing. The ARRA's prior written approval shall be required for any financing, which approval shall not be unreasonably withheld. The ARRA shall 28 be provided with copies of any such draft Mortgage instruments prior to their execution and shall approve or shall make any objections to such draft instruments within thirty (30) days from the date of the receipt of the complete documentation of the Mortgage. The ARRA shall review the drafts for the purpose of evaluating their conformity with this Agreement, and acceptability of the encumbrance instruments. The ARRA agrees to consider requests for reasonable Mortgagee protection amendments to this Agreement; provided that any approval by the ARRA of such amendments will be at the ARRA's sole and absolute discretion. e. Delivery to the ARRA. Provider shall deliver to the ARRA, promptly after execution by Provider, a copy, certified by Provider as a true copy, of any Mortgage and any subsequent amendment, modification or extension thereof, together with the name and address of the owner(s) and holder(s) thereof. f. Disposition and Application of Insurance Proceeds. A Mortgage shall contain provisions permitting the disposition and application of the insurance proceeds with respect to the Premises in the manner provided in this Agreement. g. Rights Subject to Agreement. All rights acquired by a Mortgagee under any Mortgage shall be subject to each and all of the covenants, conditions and restrictions set forth in this Agreement, and to all rights of the ARRA hereunder, none of which covenants, conditions and restrictions is or shall be waived by the ARRA by reason of the giving of such Mortgage, except as expressly provided in this Agreement or otherwise specifically waived by the ARRA in writing. h. Required Provisions of any Mortgage. Provider agrees to have any Mortgage provide that: i. The Mortgagee shall by registered or certified mail give written notice to the ARRA of the occurrence of any event of default under the Mortgage; ii. The ARRA shall be given notice at the time any Mortgagee initiates any foreclosure action. i. Notices to Mortgagee. i. If Provider shall have granted any Mortgage and if the Mortgagee thereunder shall have given to the ARRA written notice substantially in the form provided in Subsection (ii) below, the ARRA shall give to Mortgagee a copy of any and all notices of default or of the occurrence of an Event of Default from time to time given to Provider by the ARRA at the same time as and whenever any such notice shall thereafter be given by the ARRA to Provider, addressed to such Mortgagee at the address last furnished to the ARRA. Any such notices to Mortgagee shall be given in the same manner as provided in Section 19 above. ii. The Mortgagee under any Mortgage shall be entitled to receive notices from time to time given to Provider by the ARRA under this Agreement in accordance with Subsection (i) above provided such Mortgagee shall have delivered a notice to the ARRA in substantially the following form: 29 "The undersigned does hereby certify that it is a Mortgagee, as such term is defined in that certain Legally Binding Agreement entered into by and between the Alameda Reuse and Redevelopment Authority, as lessor, and , as Provider (the "Legally Binding Agreement "), of Provider's interest in the Legally Binding Agreement demising the parcel, a description of which is attached hereto as Exhibit A and made a part hereof by this reference. The undersigned hereby requests that copies of any and all notices from time to time given under the Legally Binding Agreement to Provider by the ARRA be sent to the undersigned at the following address: J. Mortgagee's Right to Cure. If Provider, or Provider's successors or assigns, shall mortgage this Agreement in compliance with the provisions of this Section, then, so long as any such Mortgage shall remain unsatisfied of record, the following provisions shall apply: i. In the case of any notice of default given by the ARRA to Provider and Mortgagee in accordance with this Section 21, the Mortgagee shall have the same concurrent cure periods as are given Provider under this Agreement for remedying a default or causing it to be remedied, plus, in each case, an additional period of thirty (30) days after the later to occur of (A) the expiration of such cure period, or (B) the date that the ARRA has served a notice of default upon Mortgagee, and the ARRA shall accept such performance by or at the instance of the Mortgagee as if the same had been made by Provider; provided, however, if such default cannot reasonably be cured or remedied by the Mortgagee within such additional thirty (30) day period, such cure period shall be extended (and no Event of Default shall be deemed to have occurred under this Agreement) so long as the Mortgagee commences the cure or remedy within such period, and prosecutes the completion thereof with diligence and dispatch, subject to delays caused by foreclosure, bankruptcy or insolvency proceedings. ii. Anything herein contained to the contrary notwithstanding, upon the occurrence of an Event of Default, other than an Event of Default due to a default in the payment of money or other default reasonably susceptible of being cured prior to Mortgagee obtaining possession, the ARRA shall take no action to effect a termination of this Agreement if, within thirty (30) days after notice of such Event of Default is given to each Mortgagee, a Mortgagee shall have (A)(i) obtained possession of the Premises (including possession by a receiver), or (ii) notified the ARRA of its intention to institute foreclosure proceedings or otherwise acquire Provider's interest under the Agreement, and (B) thereafter promptly commences and prosecutes such proceedings with diligence and dispatch (subject to delays caused by bankruptcy or insolvency proceedings). Upon such a foreclosure or other acquisition of Provider's interest under the Agreement, the ARRA shall recognize such Mortgagee, or, subject to approval by the ARRA as required by Section 6 above, any other foreclosure or trustee sale purchaser or recipient of any deed in lieu as Provider hereunder, which successor Provider shall take Provider's interest in the Premises subject to all of the teims, agreements, covenants, conditions and provisions in this Agreement and shall accept and agree in writing to be bound by all the terms and conditions of this Agreement and assume Provider's obligations hereunder. A Mortgagee, upon acquiring Provider's interest under this Agreement, shall be required promptly to cure all other defaults then reasonably susceptible of being cured by such Mortgagee. 30 k. Assignment by Mortgagee. If a Mortgagee shall acquire Provider's interest in this Agreement as a result of a sale under said Mortgage pursuant to a power of sale contained therein, pursuant to a judgment of foreclosure, through any transfer in lieu of foreclosure, or through settlement of or arising out of any pending or contemplated foreclosure, bankruptcy or insolvency action, or in the event a Mortgagee becomes Provider under this Agreement, such Mortgagee's right thereafter to assign or transfer this Agreement shall be subject to the restrictions of Section 6 above. 1. Insurance Proceeds and Condemnation Awards. The ARRA shall notify all Mortgagees entitled to notice hereunder of, and be entitled to appear in, monitor, or intervene in, any insurance claim, adjustment, or settlement pertaining to the Premises. Subject to Section 21(f) above, a Mortgagee shall be authorized and permitted to collect, hold, and/or administer any and all proceeds of insurance or condemnation awards to Provider as follows: to the extent of any recovery of awards for damage or destruction of the Premises, the Mortgagee shall be authorized to require the application thereof first to repair and restoration or taking of the Premises, second to the cost of collection of such award, and third to satisfy the indebtedness secured by the Mortgage until such indebtedness is fully satisfied. Thereafter, any remaining proceeds shall be paid over to the ARRA and Provider to the extent of their interests therein. 22. ESTOPPEL CERTIFICATE. Each Party hereby severally covenants that within ten (10) days after a written request of any other Party it will issue to such other Party, or to any Mortgagee, or to any prospective purchaser or prospective mortgagee specified by such requesting party, or to any other person reasonably designated by the requesting party, an estoppel certificate stating: (a) whether the Party to whom the request has been directed knows of any default under this Agreement, and if there are known defaults specifying the nature thereof; (b) whether this Agreement has been modified or amended in any way (or if it has, then stating the nature thereof); and (c) that to the Party's knowledge this Agreement as of that date is in full force and effect or, if not, so stating. Such statement shall act as a waiver of any claim by the Party furnishing it to the extent such claim is based upon facts contrary to those asserted in the statement and to the extent the claim is asserted against a bona fide encumbrancer or purchaser for value without knowledge of facts to the contrary of those contained in the statement, and who has acted in reasonable reliance upon the statement. 23. AMENDMENTS TO THE AGREEMENT. a. [Note: To revise the following paragraph if Collaborative is the Provider] This Agreement is not subject to modification or amendment except by a writing executed by the ARRA and Provider unless the modification or amendment affects HCD or the Collaborative or both in which case HCD or the Collaborative or both HCD and the Collaborative must sign the modification or amendment for it to become effective. The prior written consent and approval of a Mortgagee of the Provider which has notified the ARRA of its status as Mortgagee and whose Mortgage requires such consent shall be required to the extent such modification or amendment affects such Mortgagee. b. Any modification or amendment to this Agreement shall expressly state that it is intended to amend the terms and conditions of this Agreement. 31 c. If a modification or amendment to this Agreement is entered into by less than all of the parties to this Agreement, the ARRA shall provide copies of such modification or amendment to each of the parties that is not a signatory to the modification or amendment. 24. FAILURE TO INSIST ON COMPLIANCE. The failure of the ARRA to insist, in any one or more instances, upon performance of any of the terms, covenants, or conditions of this Agreement shall not be construed as a waiver or relinquishment of the ARRA's right to the future performance of any such terms, covenants, or conditions and Provider's right to the future performance of any such terms, covenants, or conditions and Provider's obligations in respect of such future performance shall continue in full force and effect. Whenever the terms of this Agreement call for one party to approve an action or make a determination before the other party may undertake or perform such action, said approval or determination shall not be unreasonably denied or delayed. 25. WAIVER. The waiver by any Party of a breach by any other Party of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. 26. NONDISCRIMINATORY PRACTICES. Provider agrees and warrants that it will comply with all applicable federal, state, and local laws and procedures governing nondiscriminatory practices in the performance of this Agreement. 27. DISPUTE RESOLUTION. Any disputes arising under this Agreement that involve or relate to the Government or the Government's interpretation of the L114OC that are subject to resolution under the Contracts Disputes Act, 431 U.S.C. Section 601 et seq. pursuant to the provisions of Section 23 of the LIFOC shall be resolved under that Act. All other disputes that may arise under this Agreement shall be resolved in accordance with Section 5(d) of this Agreement, if applicable, and/or the provisions of the laws of the State of California. 28. COVENANT AGAINST CONTINGENT FEES. Provider warrants that no person or agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial agencies maintained by the ARRA for the purpose of securing business. For breach or violation of this warranty, the ARRA shall have the right to annul this Agreement without liability or in its discretion to require Provider to pay, in addition to the rental or consideration, the full amount of such commission, percentage, brokerage, or contingent fee. 29. OFFICIALS NOT TO BENEFIT. No member of or delegate to Congress, or Resident Commissioner, shall be admitted to any share or part of this Agreement or to any benefit to arise there from, but this proviso shall not be construed to extend to this Agreement is made with a corporation for its general benefit. 30. CONFLICTS OF INTEREST. a. Provider warrants and covenants that neither it nor any of its directors, officers, employees, consultants, or agents has any interest in, and shall not acquire any interest 32 in, any matter which will render the services described in this Agreement to be a violation of any applicable federal, state, or local conflict -of- interest law. In the event that any conflict of interest should nevertheless arise, Provider shall promptly notify the ARRA, HCD, and the Collaborative [Note: To revise if Collaborative is the Provider] of the existence of such conflict of interest so that they may determine what action, including terminating this Agreement, should be taken. b. Without limiting the application of the provision in Subsection (a) above, Provider specifically warrants and covenants its compliance with the Political Reform Act (Govt. Code Section 81000 et seq.) respecting this Agreement. 31. OTHER LEGAL REQUIREMENTS. In addition to the laws referred to in Sections 26 and 30 above, Provider certifies that it will carry out each activity in compliance with all applicable laws and regulations. 32. LIENS. Provider shall promptly discharge or cause to be discharged any valid lien, right in rem, claim, or demand of any kind on the Premises, except one in favor of the Government or the ARRA, or any valid Mortgages or Regulatory Agreements, provided such Mortgages and Regulatory Agreements have been approved by the ARRA, which at any time may arise or exist with respect to the Premises or materials or equipment furnished therefor, or any part thereof, and if the same shall not be promptly discharged by Provider, or should Provider be declared bankrupt or make an assignment on behalf of creditors, or should the leasehold estate be taken by execution, the ARRA reserves the right to take immediate possession without any liability to Provider or any Provider thereof. If Provider breaches the foregoing while the LIFOC is in effect, Provider and any subtenant thereof shall be responsible for any costs incurred by the Government in securing clear title to its property. 33. DEFAULTS. The occurrence of any one or more of the following events shall constitute an "Event of Default" under the terms of this Agreement (regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings, in law, in equity or before any administrative tribunal which has or might have the effect of preventing Provider from complying with the terms of this Agreement: a. Failure to Pay. Provider fails to pay when due Rent, or other amounts due hereunder and such failure continues for a period of fifteen (15) days after written notice to Provider from the ARRA. b. Transfers. Provider Transfers, or attempts to Transfer the Premises or any part thereof other than in the manner and upon the conditions set forth herein. c. Failure to Perform. Provider fails to perform or observe any of its other obligations, covenants, or agreements hereunder, including, without limitation, use of the Premises for a purpose different from or in addition to the uses described in Section 4 above, and such failure continues ten (10) working days after written notice of any such failure has been given by or on behalf of the ARRA, or, if more than ten (10) working days is required to cure such failure, within said ten (10) working days, Provider shall advise the ARRA in writing of Provider's intended course of action to cure and the estimated date as to when said action will be completed, and if Provider fails to commence such cure as promptly as practical as stated in its 33 notice to the ARRA and thereafter diligently to pursue such cure and thereafter fails to diligently pursue such a cure and complete such cure within a reasonable time thereafter, or within the period of time as may be otherwise be required under this Agreement. d. Liquidation, Insolvency, Assignment for Benefit of Creditors. Provider liquidates its business, becomes insolvent, makes an assignment for the benefit of creditors or files a voluntary petition for bankruptcy, bill in equity, or other proceedings for the appointment of a receiver or other custodian for its property or if proceedings for reorganization or composition with creditors under any law are instituted by Provider. e. Bankruptcy. Provider has filed against it a petition of bankruptcy, bill in equity, or other proceedings for the appointment of a receiver or other custodian for its property, or if proceedings for reorganization or composition with creditors under any law are instituted against Provider, which petition is not withdrawn or dismissed within ninety (90) days of the filing. f. Appointment of Receiver. The appointment of a receiver or other custodian to take possession of substantially all of Provider's assets or of Provider's interest in the Premises, which appointment is not withdrawn or dismissed within ninety (90) days. g. Attachment, Execution, Levy or Sale. Attachment, execution, any levy or sale or execution of any kind is made upon or of any property of Provider in the Premises, or other judicial seizures of substantially all of Provider's assets or of Provider's interest in the Premises, which is not dismissed, bonded and dismissed, or stayed within ninety (90) days. h. Abandonment. Provider abandons or vacates the Premises or Provider removes or attempts to remove or manifests an intention to remove Provider's goods or property from or out of the Premises otherwise than in the ordinary and usual course of business. i. Failure to Vacate. Provider fails to vacate the Premises at the end of the term of this Agreement unless this Agreement is otherwise renewed or extended. 34. REMEDIES. a. The ARRA's Remedies. Upon an Event of Default, the ARRA shall have the following rights and remedies in addition to any rights or remedies available to the ARRA at law or in equity, or under this Agreement. i. All rights and remedies provided by applicable laws. ii. The ARRA may terminate this Agreement, by written notice to Provider, without any right by Provider to reinstate its rights by payment of Rent due or other performance of the terms and conditions hereof. Upon such termination, Provider shall immediately surrender possession of the Premises to the ARRA. iii. With or without terminating this Agreement, as the ARRA may elect, the ARRA may re -enter and repossess the Premises, or any part thereof, and lease them to any other person upon such terms as the ARRA shall deem reasonable, for a term within or 34 beyond the Term; provided, that any such reletting prior to termination shall be for the account of Provider, and Provider shall remain liable for (A) all Rent and other sums which would be payable under this Agreement by Provider in the absence of such expiration, termination or repossession, less (B) the net proceeds, if any, of any reletting effected for the account of Provider after deducting from such proceeds all of the ARRA's expenses, reasonable attorneys' fees and expenses, employees' expenses, alteration costs, expenses of preparation for such reletting and all costs and expenses, direct or indirect, incurred as a result of Provider's breach of this Agreement. If the Premises are, at the time of default, sublet or leased by Provider to others, the ARRA may, as Provider's agent, collect rents due from any of Provider's subtenants and sub - subtenants and apply such rents to the Rent and other amounts due hereunder without in any way affecting Provider's obligation to the ARRA hereunder. Such agency, being given for security, is hereby declared to be irrevocable. iv. With respect to any portion of the Premises which is vacant or which is not physically occupied by Provider, the ARRA may remove property therefrom, and store such property in a public warehouse or elsewhere at the cost of and for the account of Provider, in such manner as may be permitted by applicable law, without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned therefor. b. No Relief of Obligation. No early expiration or termination of this Agreement (except as expressly provided herein) and no repossession of the Premises or any part thereof shall relieve Provider of its liabilities and obligations to pay Rent accrued hereunder prior to such expiration or termination, all of which shall survive such expiration, termination or repossession, and the ARRA may, at its option, sue for and collect all Rent and other charges due hereunder at any time as when such charges accrue. c. Cumulative. No right or remedy herein conferred upon or reserved to the ARRA is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity or by statute. d. Payment of Fees and Expenses. In the event that the ARRA commences suit for the repossession of the Premises, for the recovery of Rent or any other amount due under the provisions of this Agreement, or because of the breach of any other covenant herein contained on the part of Provider to be kept or performed, and a breach shall be established, Provider shall pay to the ARRA all expenses incurred in connection therewith, including reasonable attorneys' fees. In the event that Provider commences suit because of the breach of any covenant herein contained on the part of the ARRA to be kept or performed, and a breach shall be established, the ARRA shall pay to Provider all expenses incurred in connection therewith, including reasonable attorneys' fees. e. Rights of Possession. In the event the ARRA terminates Provider's right to possession of the Premises pursuant to this Section 34 Provider hereby expressly waives any and all rights to recover or regain possession of the Premises under any rights of redemption to which it may be entitled by or under any present or future federal or state law. 35 f. The ARRA's Right to Cure. Upon the occurrence of an Event of Default, the ARRA shall have the right, but not the obligation, to take such action as reasonably necessary to cure such default. 35. TERMINATION BY THE GOVERNMENT. a. Termination by Government of the LIFOC for Breach. The Government has the right to terminate the LIFOC on account of the breach by the lessee thereunder of any of the terms and conditions of the LIFOC. In the event of a breach involving the performance of any obligation under the LIFOC, the LIFOC provides that the ARRA, as the lessee thereunder, shall be afforded ten (10) working days from the receipt of the Government's notice of intent to terminate, to commence action to complete the performance of the obligation or otherwise cure the subject breach and avoid termination of the LIFOC, which action to cure is to be completed within a reasonable period of time. Within said ten (10) working days, the lessee under the LIFOC is required to advise the Government of the lessee's intended course of action to cure and the estimated date as to when said action will be completed. The ARRA agrees to immediately, and in any event within twenty -four (24) hours after the ARRA's receipt, except when it arrives on a weekend or holiday, in which event it shall be delivered by the next business day, provide a copy of any such notice to Provider, the Collaborative [Note: To delete if Collaborative is the Provider], and HCD. In the event that any such notice is delivered to the ARRA as the lessee under the LIFOC, for any such breach occasioned or caused by the action, negligence or inaction of Provider, or any party acting on behalf of or through Provider, for an obligation, covenant or undertaking of Provider under this Agreement, then Provider shall either commence action to complete the performance of the obligation or otherwise cure the subject breach and avoid termination of this Agreement and the LIFOC, which action to cure is to be completed within a reasonable period of time, or immediately advise the ARRA of Provider's intended course of action to cure the breach if it cannot be reasonably cured within the ten (10) working day period specified and the estimated date as to when said action will be completed. Provider shall either cure such breach within ten (10) working days from the date of receipt of the Government's notice of intent to terminate by the ARRA (which period may be extended by the ARRA commensurate with any extension obtained by the ARRA from the Government), or Provider shall provide its plan and program in writing as to its proposed action to complete the performance of the obligation and shall commence such cure of the breach as soon as reasonable and possible under the circumstances and complete such action to cure within a reasonable period of time in light of the nature of the breach and any circumstances beyond Provider's reasonable control. If Provider should fail to cure within the grace periods provided above, and the Government does not terminate the Lease under the provisions of the LIFOC, then ARRA shall have the option to terminate this Agreement in accordance with the provisions of Section 36 below, without the necessity of providing further notice or rights of cure to Provider, subject to the rights of Mortgagees. b. Indemnity. In the event that the Government shall elect to terminate the LIFOC on account of the breach by Provider of any of the terms and conditions hereof or of the LIFOC to be performed by Provider, Provider shall indemnify the ARRA against any claims the Government may have against the ARRA for any of the following under the LIFOC: 36 i. The costs incurred by the Government in resuming possession of the Premises. ii. The costs incurred in performing by the Government of any of Provider's obligations under this Agreement. iii. An amount equal to the aggregate of any maintenance obligations, and charges assumed hereunder and not therefore paid or satisfied, which amounts shall be due and payable at the time when such obligations, and charges would have accrued or become due and payable under this Agreement. c. Termination by Government for Other Than Breach. In addition to the right to terminate the LIFOC for breach, the Government is entitled to terminate the LIFOC, at any time, (i) in the event the use of the Premises is incompatible with the NEPA Record of Decision, or (ii) In the event of a national emergency as declared by the President or the Congress of the United States in accordance with the National Emergencies Act. Provider shall not seek and shall not have any claim against the ARRA for any such termination for convenience by the Government, except to the extent that the ARRA obtains recovery therefor from the Government for itself or on behalf of Provider. 36. TERMINATION BY ARRA. a. Before Program Operation. i. As set forth in the Standards of Reasonableness, unless substantial rehabilitation of the Premises is required, as described in more detail in Section 36(a)(ii) below, Provider shall have one (1) year from taking possession of the Premises [Note: The immediately foregoing phrase "taking possession of the Premises" shall be replaced with "execution of this Agreement" for the Bessie Coleman, Building 101 and Nursery Community Garden LBAs.] to begin operating its program at the property. If Provider cannot operate within one year, this Agreement shall terminate and HCD shall have six (6) months to identify an alternate provider. Once identified, the alternate provider will have one year to begin operating its program and, as provided in the Standards of Reasonableness, if the second provider cannot perform, the Premises shall revert to the ARRA. ii. If substantial rehabilitation to the Premises is required, Provider will have up to one additional year to become operational, as is set out in the Standards of Reasonableness. If in this case Provider cannot operate within two years, this Agreement will terminate and the HCD shall have six (6) months to identify an alternate provider. Once identified, the alternate provider will have one year to begin operating and, if the second provider cannot perform, the Premises will revert to the ARRA. iii. The Parties acknowledge that the Premises required substantial rehabilitation, which was performed by Provider pursuant to the Interim Sublease, and that Provider has commenced program operations within the time requirements of the Standards of Reasonableness and that, consequently, the ARRA's termination rights under this Section has no 37 termination rights pursuant to this Section 36(a) do not apply to Provider. [Note: To be revised for Bessie Coleman, Building 101 and Nursery Community Garden LBAs.] b. Termination after Program Operation Begins. If Provider has been given an opportunity to cure a default or to do or refrain from doing an act, whether as a result of the dispute resolution process set out in Section 5(d) above or under the cure provision of Section 33 above, and Provider has failed to do so, subject to Section 21 above, the ARRA may elect to terminate this Agreement. If the ARRA so elects to terminate, Provider shall no longer be entitled to possession, use, or occupancy of the Premises, and the Premises shall revert to the ARRA. 37. TERMINATION BY PROVIDER. a. Notice. Provider shall have the right to terminate this Agreement upon thirty (30) calendar days written notice to the ARRA in the event of damage to or destruction of all of the improvements on the Premises or such a substantial portion thereof as to render the Premises incapable of use for the purposes for which it is leased under this Agreement, provided: i. That the cost of the repair, rebuilding, or replacement of the damaged or destroyed improvements is in excess of the amounts of insurance carried for such purpose by Provider pursuant to Section 17 above; and ii. That such damage or destruction was not occasioned by the willful misconduct or gross negligence of Provider or any of its officers, agents, employees, subtenants, licensees, or invitees, or by any failure or refusal on the part of Provider to fully perform its obligations under this Agreement. b. Reversion of Premises. If this Agreement is teiminated by Provider pursuant to this Section 37, the Premises shall revert to the ARRA. 38. VACATION OF PREMISES. In the event environmental contamination is discovered on the Premises which creates, in the Government's determination, an imminent and substantial endangerment to human health or the environment, then notwithstanding any other termination rights and procedures contained in this Agreement, the Government may require the ARRA to require that Provider vacate the Premises for such period of time, and to such extent, as the Government determines in good faith is necessary to abate the danger. In accordance with the LIF'OC, the Government shall not be liable for the exercise of authority which is in conformity with this Section 38, but the Government nevertheless shall not be relieved of any liability it may have under the Federal Tort Claims Act, the Comprehensive Environmental Response, Compensation and Liability Act ( "CERCLA "), and other statutory and common law, if it would be liable in its role as the generator or disposer of the environmental contamination, or as the present, or former, owner or operator of the Premises. 38 39. SUBJECT TO EXISTING AND FUTURE EASEMENTS AND RIGHTS - OF -WAY. a. Easements and Rights -Of -Way. Provider acknowledges that the LIFOC, and this Agreement, are subject to all outstanding easements and rights -of -way for location of any type of facility over, across, in, and upon the Premises or any portion thereof. b. Further Grants by Government. Provider further acknowledges that the Government is entitled, under Section 28 of the LIFOC, to grant such additional easements and rights -of -way over, across, in and upon the Premises as it shall determine to be in the public interest; provided that any such additional easement or right -of -way shall not unreasonably interfere with the access to, and the use and possession of, the Premises by the ARRA or any subtenant, or other occupants who are legitimately in possession or occupancy of the Premises through the ARRA or any subtenant of the ARRA, and shall be conditioned on the assumption by the grantee thereof of liability to the ARRA and Provider for such damages as the ARRA or Provider shall suffer for property destroyed or property rendered unusable on account of the grantee's exercise of its rights thereunder. 40. INGRESS AND EGRESS. Provider acknowledges that Section 29 of the L.IP'OC provides for reasonable access being granted by the Government to the Premises, with such access being coordinated with the ARRA. As required under the LIFOC while it is in effect, Provider agrees to adhere to all base rules and regulations regarding security, ingress, egress, safety and sanitation as may be prescribed from time to time by the Government, with the understanding that such base rules and regulations regarding security, ingress, egress, safety and sanitation shall not, except for military security and emergency situations, unreasonably interfere with reasonable use and access of Provider, its employees, contractors, invitees in the normal activities and uses permitted under the LIFOC. 41. SURRENDER OF PREMISES. Upon the expiration of this Agreement or its earlier termination, Provider shall quietly and peacefully remove itself and its property from the Premises and surrender the possession thereof to the ARRA; provided, in the event the ARRA terminates this Agreement for a breach of this Agreement by Provider, or because of a termination of the LIFOC not caused by the ARRA, Provider shall be allowed a reasonable period of time, as determined by the ARRA, in which to remove all of its property from and terminate its operations on the Premises. During such period prior to surrender, all obligations assumed by Provider under this Agreement shall remain in full force and effect. The ARRA or the Government, as applicable, may, in its discretion, declare any property which has not been removed from the Premises upon termination provided for above, as abandoned property upon an additional thirty (30) days notice. Provider shall surrender the Premises to the ARRA in at least the same condition, reasonable wear and tear excepted, as when Provider initially took possession and completed any rehabilitation required pursuant to Section 2(b) above or any other rehabilitation approved by the ARRA. 42. QUIET POSSESSION. Upon Provider paying the Rent reserved hereunder and observing and performing all of the covenants, conditions and provisions on Provider's part to be observed and performed hereunder, Provider shall have quiet possession of the Premises for the entire Term hereof, subject to all the provisions of this Agreement. 39 43. CERTAIN RIGHTS RESERVED TO ARRA. The ARRA reserves the following rights: a. Right to Show Premises. On reasonable prior written notice to Provider, no less than forty -eight (48) hours in advance, to show the Premises to prospective tenants during the last nine (9) months of the Term, and to any prospective purchaser, mortgagee, or assignee of any mortgage or ground lease on the Premises and to others having a legitimate interest in the Premises at any time during the Term. b. Right to Take Action. At any time in the event of an emergency, and otherwise at reasonable times, to take any and all measures, including making any inspections, repairs, alterations, additions, and improvements to the Premises, as may be necessary or desirable for the safety, protection, or preservation of the Premises or its occupants in order to comply with all laws, orders, and requirements of governmental or other authorities, using reasonable efforts not to interfere with the use and occupancy of the Premises by Provider. The ARRA shall not be in default hereunder nor have any liability to Provider, nor shall Provider have any right to terminate this Agreement or claim an offset against or reduction in Rent payable hereunder, due to any damage, annoyance or inconvenience resulting from any such inspections, repairs, alterations, additions or improvements, or the failure of the ARRA to make any such inspections, repairs, alterations, additions or improvements; provided however that the ARRA shall be liable for its gross negligence or willful misconduct. Provider shall reasonably cooperate with the ARRA or the ARRA's agents or contractors in carrying out any such inspections, repairs, alterations, additions or improvements. 44. CONTROLLING LAW. This Agreement and all matters relating to it shall be governed by the laws of the State of California. 45. TIME IS OF THE ESSENCE. In the performance of this Agreement, time is of the essence. 46. WHOLE AGREEMENT. This Agreement constitutes the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto and supersedes all negotiations or previous agreements between the Parties with respect to all or any part of the subject matter hereof. 47. SUCCESSORS BOUND. This Agreement shall inure to the benefit of and be an obligation of any agency that succeeds to the legal rights and obligations of the ARRA or HCD. The terms, covenants and conditions herein contained shall be binding upon and inure to the benefit of the successors and assigns of the Parties hereto. 48. SEVERABILITY. Should any part of this Agreement be declared by a final decision of court or tribunal of competent jurisdiction, to be unconstitutional, invalid, or beyond the authority of such party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement, absent the unexcised portion, can be reasonably interpreted to give effect to the intentions of the Parties. 40 49. DISCLOSURES MADE. Provider warrants that it has received all disclosures required by law to have been given to it. 50. FURTHER ASSURANCES. The Parties shall execute such further documents and instruments as may reasonably be required from time to time by the other Party to effectuate and carry out the provisions hereof and to take such further actions as may reasonably be required to give the terms hereof full force and effect for the benefit of the Parties. 51. NO THIRD PARTY BENEFICIARIES. The subtenants and sub - subtenants of Provider are not intended to be, and shall not be deemed or construed to be, third party beneficiaries under this Agreement. 52. HEADINGS. Section and Subsection headings in this Agreement are for convenience only and are not to be construed as a part of this Agreement or in any way limiting or amplifying the provisions of this Agreement. 53. COUNTERPARTS. This Agreement may be executed in counterparts but the parties agree that the document on file in the office of the Secretary to the ARRA is the version of the Agreement that shall take precedence should any differences exist among counterparts of the documents. IN WITNESS WHEREOF, the Parties, by and through representatives duty authorized to act, have executed this Agreement. ARRA: ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY, a joint powers authority formed under California law By: Approved as to form: Name: By: Its: Name: Its: 41 HCD: ALAMEDA COUNTY HOUSING AND COMMUNITY DEVELOPMENT, a political subdivision of the State of California By: Approved as to form: Name: By: Its: Name: Its: [Note: To revise following signature blocks to if Collaborative is the Provider] COLLABORATIVE: ALAMEDA POINT COLLABORATIVE, INC., a California nonprofit public benefit corporation By: Name: Its: PROVIDER: a By: Name: Its: 42 LIST OF EXHIBITS Exhibit A Description of Premises Exhibit B Executed Copy of LIFOC Exhibit C Permitted Uses of Premises and Permitted Subleasing Exhibit D Categorical Exclusion Exhibit E Management Plan Exhibit A To be provided in each individual LBA. Exhibit B On file with the ARRA Secretary. Exhibit C To be provided in each individual LBA. Exhibit D On file with the ARRA Secretary. Exhibit E Alameda Point Collaborative Property Management Plan For Transitional and Permanent Housing At Alameda Point December 5, 2001 Alameda Point Collaborative Property Management Plan For Transitional and Permanent Housing At Alameda Point TABLE OF CONTENTS Page 1. Roles and Relationships of Entities 2 2. Statement of Management Policy 3 3. Uses 3 4. Resident Selection 3 5. Occupancy 7 6. Rent Collection 8 7. Resident Information and Communication 10 8. Property Maintenance 11 9. Administration and Management 14 10. Social Service Program 15 Alameda Point Collaborative Property Management Plan For Transitional and Permanent Housing At Alameda Point 1. ROLES AND RELATIONSHIPS OF ENTITIES 1.1 Alameda County Department of Housing and Community Development The Alameda County Department of Housing and Community Development (HCD) is a party to the Legally Binding Agreement and has provided Providers with funding for the rehabilitation, operations and services. 1.2 Alameda Point Collaborative The Alameda Point Collaborative (Collaborative), formerly known as the Alameda County Homeless Providers Base Conversion Collaborative, is the coordinating body for the housing and supportive services at the Alameda Point Collaborative Transitional and Permanent Housing (APC TPH). The Collaborative is the current Property Manager, a Service Provider, and, in certain instances, a Provider. 1.3 Alameda Reuse and Redevelopment Authority The Alameda Reuse and Redevelopment Authority (ARRA) is the lessor of the APC TPH to the Providers. 1.4 Property Manager The current Property Manager is the Collaborative. The Property Manager, in consultation with Providers and Service Providers, is responsible for marketing and selecting residents, leasing and lease enforcement, providing maintenance and repairs, and financial and narrative reporting to the Providers and lenders for the APC TPH. The Project Management will have a staff that includes a Director of Property Management and four Resident Managers. 1.5 Providers Providers are lessee's of the APC TPH from the ARRA. In some instances the Provider may be the Collaborative and be a Service Provider as well. The Providers have overall responsibility for the duties described in this Property Management Plan. If the Property Manager or Service Provider fails to act, then the Provider is obligated to act. The Provider will retain the direct responsibility, among other responsibilities, for the following activities in relation to their leasehold: 1 Selecting the Property Manager; 2. Establishing the broad policy guidelines under which the property will operate and delegating to Property Manager the authority and responsibility to carry out these policies; 2 3. Assisting Property Manager with preparation of the annual operating budget and rent increase requests; 4. Obtaining insurance; 5. Hiring an accounting firm to prepare an annual audit or financial statement; 6. Arranging for support services; 7. Finding solutions for shortfalls in income; 8. Designing a liaison to the Property Manager; and 9. Reporting to lenders as required by regulatory agreements. 1.6 Service Providers Service Providers may be the Collaborative, the Provider or a third party agency. Services Providers provide the services to support resident living at APC TPH. These services include case management, life skills, child rearing, information and referral, safety planning and violence prevention. 2. STATEMENT OF MANAGEMENT POLICY The goal of the Provider and Property Manager is to ensure resident satisfaction and the long -term financial and physical well being of facilities operated by Providers through the provision of high quality management services. This plan sets forth the relationship between the Provider, Property Manager and Service Providers, and describes the policies and procedures to meet the goal. Specifically, this plan intends to outline a definite program of action to assure: • Well- managed and properly maintained units. • A pleasant, healthy, and secure living environment for the residents. • A pleasant relationship among residents, the Property Manager's employees, Service Providers and members of the surrounding community. 3. USES The permitted uses are specified in the Legally Binding Agreement. 4. RESIDENT SELECTION 4.1 Affirmative Marketing/Fair Housing a. Units will be marketed in accordance with the Resident Selection Criteria and Marketing Plan for each property. b. Prospective renters will be recruited through a marketing strategy designed to ensure equal access to all appropriate -sized housing units at APC TPH for all persons protected by federal, state or local laws governing discrimination. c. The Collaborative, Providers, Service Providers and the Property Manager will not discriminate against any person on the grounds of race, color, religion, national origin, 3 sex, sexual orientation, familial status, physical or mental disability, age or source of income. d. Public and private community agencies, social service agencies, and local community groups will be informed of housing opportunities at APC TPH. Special outreach efforts will be made to inform persons outside the local area who would not normally be likely to apply because of existing neighborhood racial or ethnic patterns, rents and/or other factors. Local newspapers and other media will be sent marketing material and be used to place classified advertising as necessary. e. Special marketing and outreach will be conducted and separate waiting lists will be maintained for the following properties: Unity Village, Dignity Commons (shared housing units) and Bessie Coleman Court. All other units will be filled through the general waiting list. f. Applications will be accepted and then selected in a random fashion for interviewing and placement on the waiting list. 4.2. Waiting List a. If upon application, no units are available meeting the needs of the applicant, their name will be placed on a waiting list. b. A Master Waiting List will be kept of all applicants. Applicants will self - select which sub - category waiting lists they would like to be placed on. Sub - category Waiting Lists may be maintained. Separate waiting lists will be developed for Unity Village, Dignity Commons (shared housing units) and Bessie Coleman Court. c. Applicants will be asked to provide two alternate contacts for notifying them of housing availability. The Property Manager will use both contacts in attempting to notify the applicant of a housing opportunity. d. Applicants will be instructed of their responsibility to notify the Property Manager of their continued interest and current address twice a year. 4.3 Eligibility and Resident Selection a. The Property Manager will apply all city, state and federal requirements in determining applicant eligibility at initial rent -up and during subsequent re- certifications of resident income, which may include: 1. HUD Income Certification; 2. McKinney Homeless and Special Need Verification (e.g. veterans, survivors of domestic violence, persons with HIV /AIDS); 3. Section 504 accommodation; 4. Shelter Plus Care regulations; 5. Housing Choice Vouchers (Public Housing Authority). b. When a household's application arrives at the top of the applicant waiting list and an appropriate size unit is available, the Property Manager will make initial contact with the applicant by telephone or in writing, verify continued interest in housing at APC TPH and the housing programs for which the applicant appears to be qualified and an interview will be scheduled. c. Final selection will be dependent upon compliance with selection criteria and completion of paperwork, including the receipt of necessary verifications. Applicant's place on the waiting list is maintained if they return paperwork within 48 hours. 4 d. Current residents of APC TPH will be allowed to transfer from their unit per the transfer policy stated in the Resident Selection Criteria and the program regulations set forth by funding sources e. Families and individuals with tenant based rental assistance for Shelter Plus Care or Housing Choice Vouchers will have preference for specially designated units. If a unit designated for tenant based rental assistance remains vacant for thirty (30) days, the next eligible applicant on the waiting list will be considered. f. Homeless persons who are disabled will have preference for specially designated units for the disabled. g. Homeless persons who are Survivors of Domestic Abuse will have preference for specially designated units for Survivors of Domestic Abuse. These units will be provided unique services appropriate for Survivors of Domestic Abuse. h. Homeless persons who are Military Veterans will have preference for specially designated units for Military Veterans. These units will be provided unique services appropriate for Military Veterans and restrictive financing from the Veteran's Administration. i. Homeless persons who are persons with HIV /AIDS will have preference for specially designated units for persons with HIV /AIDS. These units will be provided unique services appropriate for persons with HIV /AIDS. j. Homeless persons who are disabled persons with Mental Health Service Needs will have preference for specially designated units for disabled persons with Mental Health Service Needs. These units will be provided unique services appropriate for disabled persons with Mental Health Service Needs. k. Homeless persons who are survivors of domestic violence or in recovery from substance abuse, and who would benefit from services provided under Native American traditions will have preference for housing units where services are provided under Native American traditions. 1. If the housing needed/available is transitional housing, the Property Manager will first refer the applicant to a Service Provider for a services consultation. If the Service Provider recommends the applicant for transitional housing, the applicant will return to the Property Manager for an interview. If the Service Provider recommends the applicant is inappropriate for the type of housing and services provided, the applicant will be so notified in writing and given an opportunity to provide additional information or request a review due to mitigating circumstances. Applicants can appeal the rejection following the steps in the Grievance and Appeals procedures. m. The Property Manager will be responsible for: 1. verifying that an applicant is income eligible, 2. verifying that an applicant is program eligible (e.g. special characteristics like disabled, veteran) 3. meets other selection criteria (e.g. eviction history) 4. maintaining adequate documentation of all eligibility criteria in the resident files. The Property Manager will meet with the applicant, review and update their application and explain and have them sign the required forms. Property Manager will check previous landlord references and obtain credit and criminal background reports. Service Providers may be requested to assist the Property Manager in obtaining verification of certain eligibility criteria such as homelessness or disability. 5 n. The Property Manager will be familiar with the certification and re- certification requirements of funding programs. Third party verification forms will be used to calculate income eligibility and rent burden. o. The Property Manager will follow the procedures outlined in the Resident Selection Criteria for accepting or rejecting the applicant. p. Written notice will be sent advising applicants of their final eligibility status. Rejected applicants will be given an opportunity to provide additional information or request a review due to mitigating circumstances. q. Rejected applicants may appeal following the procedures described in the Grievance and Appeals Procedures. r. Property Manager shall check the State of California's list of registered sex offenders. Registered sex offenders are not eligible for housing units at APC TPH. 4.4 Income Certification a. The Property Manager is responsible for obtaining third party verification of all sources of income and assets. b. Income certification is required prior to initial occupancy and on an annual basis thereafter. c. Interim re- certifications (re- certifications between annual re- certifications) are only required for a decrease in income. Interim recertifications are not required for increases in income unless there has been an interim recertification because of reduced income. The resident is responsible for notifying the Property Manager in a timely manner of a decrease in income or increase in income following an interim recertification reducing their rent. Decreases in rent are immediate. An increase in rent requires a 30 day notice. d. If the resident is disabled and was previously unemployed (earning less than $2,875 in the prior year) then an increase in income due to employment is not counted for 12 months. Fifty percent of the increase is not counted in a second 12 month period. 4.5 Annual Re- certification All residents are required to undergo an annual re- certification of income and re- calculation of rent. a. A "tickler file" will be kept showing the move -in anniversaries for all residents. b. Ninety (90) days prior to their anniversary month, residents will be sent a letter scheduling them for a re- certification interview. At the interview they will be questioned about income and assets and asked to sign necessary certification and third party verification forms. They will also be asked to sign any other necessary documents pertaining to their housing at this time and given notice of any changes in the lease or house rules. c. Sixty (60) days prior to their anniversary month, the Property Manager will review income information and determine the continued eligibility and income status of each resident due to be re- certified. The Property Manager will assess the need for any additional information or follow -up at this time. d. No later than thirty (30) days prior to their anniversary month, the resident will be notified in writing of any change in rent. 4.6 Unit Turnover and Re- Occupancy 6 a. The Property Manager will be proactive in ensuring a steady stream of housing -ready applicants for the properties. b. The Property Manager will make every effort to re- occupy vacant units in a timely manner. To ensure this, the Property Manager will always have contact with at least the next two candidates for each type of available unit. The Property Manager will have ascertained that the applicants are still interested in housing at APC TPH and do a preliminary assessment of eligibility. c. Selection will be based on the rental application, landlord references, Service Provider assessments and other criteria stated in the Resident Selection Criteria. The Property Manager will not discriminate nor give preferential treatment to any applicant unless outlined in the Resident Selection Criteria. 5. OCCUPANCY 5.1 Occupancy Standards Standards for the minimum and maximum number of residents per unit will be established and implemented in accordance with policies established by the Provider. These standards are included in the written Resident Selection Criteria. 5.2 Tenant Lease Agreement a. Each resident will sign a Tenant Lease Agreement. The lease will be in a form consistent with the Legally Binding Agreement and the requirements of the government funding received by the resident and the Provider. b. The Collaborative and Provider will review all Lease Agreements. c. Lease Agreements will be reviewed carefully with residents prior to move -in. A Service Provider will be asked to attend the meeting to review the Lease Agreement with the resident. d. Lease Agreements for transitional housing are limited to two years. Extension may be granted in writing on a case -by -case basis by HCD. 5.3 House Rules a. There will be House Rules for each property. Each property may have an addendum to the House Rules for policies specific to that property. b. The Collaborative and Provider will review all House Rules c. House Rules will be reviewed carefully with residents prior to move -in. d. Areas of concern in the APC TPH may be highlighted in House Rules and residents will be required to initial rules covering areas of concern, indicating acceptance of such rules. e. Suggestions for revisions to house rules will be solicited from residents. 5.4 Security Deposits a. Residents will be required to make a refundable security deposit in accordance with applicable state and local laws. The deposit will be equal to one month of the resident's share of rent. The security deposit will be held in a separate trust account with a depository insured by an agency of the federal government or a comparable federal 7 deposit insurance program. The balance of this account will at all times equal or exceed the aggregate of all outstanding deposits, plus accrued interest. b. When a unit has been vacated, the Property Manager will perform a move -out inspection to determine any damages or cleaning necessary over and above normal wear and tear, which will be charged against the security deposit. A resident may, but will not be required to, participate in this inspection. The move -out inspection form will be compared to the move -in inspection form to determine the extent of any resident caused damages. c. If there are damages beyond normal wear and tear, the Property Manager will document such damages with photos. d. Within 21 days from the date of move -out, a security deposit refund form will be completed and sent to the ex- resident, indicating: 1. security deposit on hand, minus 2. amount of rent or unpaid charges owing as of the date of the move -out. 3. amount of damage or cleaning charges to be assessed, and 4. an itemized list of work and actual costs for repair, cleaning, or replacement of items above normal wear and tear or an estimate of costs if work cannot be completed in the legally required time frame. Replacement cost of items charged to the resident will be based on life of the item and the amount of damage. The balance of the security deposit and interest after deductions for outstanding rent, charges, cleaning and damages will be refunded to the resident with this form and itemization of costs. 6. RENT COLLECTION 6.1 Policies and Procedures a. Resident orientation will devote special attention to ensuring that new residents understand rent collection policies. Rent Collection policies will be consistent, easily understood and firmly enforced. b. All rents will be mailed or delivered to the Property Manager at 451 Stardust Place, Alameda, 94501. All rents are due and payable on the first day of the month but in not event later than five (5) calendar days after due date. Payments must be made by check or money order. No cash is accepted. c. Rent collections will be recorded in a computerized system that produces a record of payments for each resident and a permanent ledger entry. d. A master "rent roll" will be maintained for each project and regularly updated, indicating number, name of occupant(s), rental amount, any subsidy payment(s) and current payment status for each of the units in the Property. e. Rents not received by the fifth (5th) of the month are considered late. The Property Manager will be responsible for action on all late payments. The Property Manager will work with Service Providers to encourage residents to be pro - active when they know they will be unable to cover their rent payment. f. Partial rent payments will not be accepted unless negotiated with the Property Manager as part of a written, signed agreement. 8 g. Legal costs incurred in pursuing collections of rents and/or eviction procedures will be borne by the Provider. Residents who wish to pay rent after the legal process has begun will be expected to cover any legal costs incurred to that time. If eviction is pursued, legal costs will be deducted from the security deposit. 6.2 Non- Payment of Rent a. No later than the sixth day after rent is due, the Property Manager will notify the resident and Service Provider that rent has not been received. b. The Service Provider will be given five days to obtain a commitment for assistance with rent payment for the resident. If a commitment for assistance is not received within that time, the Property Manager will serve a ten -day notice as required by HUD regulations. c. Providers and Service Providers will receive notice of all ten -day notices at the same time they are delivered to the resident. If payment of rent is not guaranteed during this period, on the tenth (10th) day, the Property Manager will inform the Service Provider and Provider that legal action will proceed. 6.3 Late Fees, Damages, and Miscellaneous Fees a. A late fee of $20.00 will be charged in connection with any rent payment not received by the fifth day of the month during the month it is due. These late fees will be collected without exception. b. A service fee of $15.00 will be charged for returned checks. Following the occasion of one check being returned by the bank, rent payment by money order or cashier's check will be required. c. Should a resident cause damage to the premises in the course of his /her tenancy, the resident will be billed for the repair of such damages when they occur, in order to avoid using the resident's security deposit for payment. These damage charges will appear on the resident's ledger card and will show as a balance until paid in full. However, should these charges still be owed when the resident vacates the unit, such charges will be deducted from the security deposit refund. Remaining charges for damages in excess of the security deposit will be recovered by referring the case to a professional collection service when appropriate. d. Except for repairs and replacements necessitated by normal wear and tear or construction defects, residents will be charged for resident - caused or resident - requested replacements and repairs. Charges for these items will be at a rate that does not exceed the actual cost for labor and materials. e. A late fee will be charged along with a service fee for returned checks that are not redeemed within the five days grace period for collecting rents. 6.4 Rent Increases and Annual Budget a. Rent increases will be anticipated and implemented as the needs of the project and regulations of funders dictate, in conjunction with preparation of the Annual Operating Budget. b. The Property Manager, in consultation with the Provider, will prepare the Annual Operating Budget for the approval of the Provider. 9 c. The HCD approves all budgets. The next year's budget will be submitted to HCD 90 days prior to the start of the new fiscal year. 7. RESIDENT INFORMATION AND COMMUNICATION 7.1 Resident Orientation a. The resident will receive a thorough review of the House Rules and Tenant Lease Agreement. Both the Property Manager and the Service Provider will participate in this review. At the time they are signed, all provisions of the Tenant Lease Agreement will be thoroughly explained and each resident will be provided a copy of the Agreement. b. Residents will be provided copies of the house rules and other materials pertaining to policies governing their occupancy at APC TPH. c. The Property Manager will provide written orientation material to include: 1. a contact number and an introduction to the resident manager; 2. information about APC TPH; 3. a list of emergency numbers for hospitals, ambulance, fire and police departments; information on social services available and an introduction to the service provider for their unit at Alameda Point; 4. the pamphlet, "Protect Your Family from Lead in Your Home;" and 5. any other documents required by applicable law. d. Residents will be advised on the procedures for reporting maintenance problems and emergencies as they occur. The definition of an emergency will also be explained to them. e. Every resident will be made aware of the physical layout of their residence and the location of fire alarms, fire extinguishers, fire exits, and fire precaution and evacuation procedures. Each resident will receive a map of Alameda Point that indicates housing, services, transportation and shopping. f. Residents will be informed about restricted wildlife areas at Alameda Point and the need to educate children and visitors to honor the restrictions. g. Residents will be informed by the Property Manager of the existence of any known toxic materials in and around the Alameda Point. h. Residents will receive infoiniation about energy and water conservation and what each resident can do to reduce energy and water waste. This will include information on trash disposal and the City of Alameda's recycling program and its operation at Alameda Point. i. An Earthquake Preparedness Plan will be prepared by the Property Manager. When developed, this plan will be distributed to all residents at the time of initial occupancy and periodic drills and workshops will be scheduled to give residents the opportunity to practice their response to an emergency situation. Property Manager will involve service providers in developing such programs. j. Residents will be introduced to the Resident Managers. k. Residents will be encouraged to offer suggestions to the Property Manager and Service Providers in areas of concern, such as security, maintenance, and rent increases, both individually and through the Residents' Council. Resident involvement in planning can result in more relevant, sensitive and effective management policies and also recognizes the principle that "participation brings commitment," i.e. that, given an 10 opportunity to participate, residents will act to improve the quality of life in their community. 7.2 Resident Council a. Resident management relations will be based on a policy of cooperation and communication. Residents will be encouraged to understand that their involvement with APC TPH, and therefore their ideas, priorities, suggestions and concerns, are both sought and valued. b. Service Providers will assist in the development of Residents' Councils. The Property Manager will encourage the establishment of a Residents' Council. An advisory group of resident representatives provides a most important function in communicating residents' sentiments, opinions, priorities, and advice in regard to established operations or changing policies. c. Resident participation will be sought in resolving problems generated by other residents, such as excessive noise or other disturbances. The Service Providers will encourage residents to act as a cohesive body to see that policies affecting the community as a whole are enforced. Ideally, residents with a complaint against another resident could present their situations to a resident committee that would work out an equitable solution d. No security force will be employed on site. Residents will be strongly encouraged to have their own "Neighborhood Watch" system. This includes the prevention and reporting of domestic violence. 7.3 Termination of Occupancy a. Termination of occupancy for failure to pay rent is discussed under Rent Collection Policies and Procedures. b. Violations of the conditions of the Tenant Lease Agreement may result in eviction. The Provider and any Service Providers involved with the resident will be notified of Tenant Lease Agreement violations that could lead to eviction. c. Before beginning an eviction, for other than nonpayment of rent, the Property Manager and Services Providers will meet with the resident to discuss the problem. The resident will be given an opportunity to correct the problem, unless the problem involves criminal activity, acts of violence or other activity creating dangerous and serious conditions for residents of the community. d. The Property Manager will make every effort to pursue alternative solutions to an eviction. The Property Manager and Service Providers understand and agree that eviction may be pursued to protect the safety of the community and to allow other residents the peaceful enjoyment of their homes. 7.4 Grievance Procedures a. The Property Manager will comply with the Grievance Procedure . b. All residents will be given copies of the Grievance Procedure during orientation and signing of the Tenant Lease Agreement. 11 8. PROPERTY MAINTENANCE 8.1 Inspections and Capital Improvements a. Units will be inspected by Property Manager within three months of resident's initial occupancy and at least annually thereafter, to ascertain the condition of each unit. Maintenance problems discovered during these inspections will be handled according to work order procedures. b. Informal inspections will be conducted during pest control operations and any damages or unsafe conditions will be immediately reported to the Property Manager for follow -up c. A redecorating schedule for common areas and units, exterior painting and projected replacements to building infrastructure, heating and ventilation systems will be established by the Property Manager. This will serve as a basis for calculating necessary funding and establishing a Replacement Reserve for each individual project in the APC TPH. The Property Manager will maintain records of when replacements and re- decorating has been done in each unit. 8.2 Unit Turnover a. When residents vacate a unit, the Property Manager will schedule a move -out unit inspection. All efforts will be made to include the resident in the inspection walk through so that any damages and repairs can be discussed with the resident. b. All routine maintenance for turnovers will be completed within three working days by the Property Manager after Property Manager has possession of the unit. If it appears that extra work such as carpet replacement or other major repair will take longer, the Property Manager will inform the Provider of the anticipated completion date and the reason for the delay. 8.3 Routine Work Orders a. Residents are to report any items requiring repair to the Property Manager office located at 451 Stardust Place, Alameda. b. All items needing repair or replacement will be recorded on a maintenance work order form by the Property Manager. This is regardless of whether the need is reported by a resident or by the Property Manager. The Property Manager will be responsible for scheduling the necessary work and causing it to be promptly performed. c. All repairs will be handled by assigned maintenance staff. Maintenance staffing may be contracted out with a third party providing services. Work beyond the knowledge and abilities of the Property Manager's maintenance staff or contractors will be handled by additional outside contractors. d. The Property Manager will maintain records of all requests for maintenance and repair and will provide information on such repairs at the request of the Provider. e. Maintenance work orders will indicate the costs of labor and materials and the Property Manager will determine if any charges are to be the resident's responsibility. Residents will be charged for damages beyond normal wear and tear. Residents will be billed for damages they or their guests cause and will be required to pay the Property 12 Manager within 30 days or other reasonable time agreed upon by the Property Manager and resident.8.4 Emergency Repairs a. All emergency repairs or replacements, regardless of the time of day they occur, will be handled promptly by Property Manager. Emergency needs are defined as those situations creating immediate threat to the health and safety of residents and/or the integrity of the grounds, buildings and equipment. Emergencies include interruption of utility services, inadequate heat and plumbing, and glass breakage depriving residents of security or heat. b. In case of emergency after business hours, a 24 -hour paging service will be maintained to notify appropriate staff. c. The Property Manager will train Resident Managers on who should be contacted in an emergency and when the Property Manager or upper level management should be contacted and who should handle repairs 8.5 Preventive Maintenance Plan a. Property Manager will develop and implement a Preventive Maintenance Schedule. Providers will assist the Property Manager to set expected useful life for re- decorating such as painting, and replacement of carpet and window coverings. b. Preventive Maintenance Plan will include the following items: exterior painting, roofing, pest control, electrical, plumbing and mechanical systems. c. Because of the age of the APC TPH units, the Property Manager will pay special attention to recognizing and managing lead -based paint hazards and asbestos containing materials. This will include special training of the Property Manager's staff and distribution of appropriate informational materials to residents. 8.6 Grounds and Landscaping a. Property Manager will hire grounds staff to maintain landscaping. b. Resident Managers will be responsible for custodial maintenance of grounds and parking areas. This will include a regular schedule for picking up trash and litter. c. Building exteriors will be kept clean and free of graffiti. d. The Property Manager's grounds staff will be responsible for watering the lawns in the dry season. e. Alameda Point may have substantial toxic material on the grounds because of past uses of the base. Provider, Property Manager and Service Providers shall comply with all applicable environmental laws, including the City's Marsh Crust Ordinance. 8.7 Trash Collection a. Property Manager will arrange for garbage removal. The Resident Manager will be responsible for maintaining the cleanliness of the trash areas. Trash areas will be swept daily and scrubbed with disinfectant when necessary. b. Residents will be educated in trash disposal and recycling. c. Resident will be educated on the illegality of dumping anywhere at Alameda Point. Residents who are discovered dumping furniture or other trash will be charged the cost of removing the debris. Repeated violations may be grounds for eviction. 13 8.8 Pest Control a. The Property Manager will arrange for pest control services on an "as needed" basis. b. Pest control services will be contracted for mice, rat or cockroach infestations. Removal of other insects such as spiders or ants will be the responsibility of the resident. c. In order to rely on the least toxic pest control, residents will be expected to cooperate in maintaining pest control methods such as boric acid trails, proper housekeeping techniques and humane traps. 8.9 Inventory a. The Property Manager will be responsible for preparation of an inventory of all appliances, furniture and equipment, including serial numbers. This inventory will be updated as needed, but no less often than once a year. b. New items on the inventory will be added to the preventive maintenance schedule as appropriate. 9. ADMINISTRATION AND MANAGEMENT 9.1 Property Manager a. Once the Provider has established policies and obtain the any necessary approvals from the ARRA or HCD, the Provider will delegate authority to the Property Manager to implement the policies. The Property Manager will, by means of periodic financial statements and occupancy reports, advise the Provider on the operation of the project. b. Day -to -day operation of the project will be under the direct supervision of the Property Manager. . c. The Property Manager will hire four (4) Resident Managers who will assist the Property Manager in carrying out day -to -day custodial operations of the project. d. The Director of Property Management will be responsible for communications to the Providers. e. Each Provider will appoint a key contact person or liaison to represent the Provider in regular communications with the Property Manager. f. There will be regular meetings between the Provider liaison and the Property Manager for the purpose of reviewing policies, management procedures, resident relations and financial and occupancy reports. Provider and Property Manager will work jointly to establish any changes in policies and procedures. Should it become necessary to alter these policies, the Property Manager will not do so without the prior approval of the Provider and any regulatory bodies that must approve the policies. g. The Annual Operating Budget for the project will be prepared by the Property Manager and approved by the Provider. In the event that items need to be purchased that either were not budgeted, or that would bring the project substantially over budget for the year to date, the Property Manager will promptly notify the Provider, who will review and approve such additional purchases. h. In the event the Property Manager must arrange for emergency repairs involving manifest danger to persons or property, or make payments to avoid suspension of any 14 necessary service to the project, the Property Manager will inform the Provider of the facts as promptly as possible. i. At no time will the Provider or its representative issue instruction to any on -site personnel of the Property Manager. Provider concerns and suggestions will be communicated to the Property Manager who will issue instructions to maintenance staff, Property Manager's support staff and Resident Managers. 9.2 Staffing a. The Director of Property Management will be responsible for hiring, firing, training, paying and supervising all personnel performing property management work. All on -site property management personnel will be employees of the Property Manager. b. The Director of Property Management will provide basic training to Resident Managers. Training programs on specialized topics may be added to the annual budget. Service Providers will be used to provide supplemental training. c. The Property Manager will be reimbursed for compensation payable to Resident Managers and for all taxes and assessments incident to the employment of such personnel. These reimbursements will be treated as project expenses and paid out of the General Operating Account for each project. The Property Manager will be paid out of the Property Manager's management fee. d. Employment grievances, termination of employment and promotions will be conducted according to the Property Manager's personnel policies and procedures. e. The anticipated staff is one Director of Property Management, a part-time Assistant Property Manager, a part-time bookkeeper and four Resident Managers f. All hiring of site personnel will conform to Equal Employment Opportunity guidelines without regard to race, color, creed, ancestry, age, religion, national origin, sex, sexual orientation, marital status, pregnancy, children, disability, AIDS - Related Conditions (ARC), receipt of or eligibility for housing assistance under any government housing assistance program or other arbitrary factors. g. Special efforts will be made to provide information regarding job opportunities to minority candidates and contractors through outreach to community organizations and communication media. All hiring materials will indicate that the Property Manager is an "Equal Opportunity Employer" and will display the disabled logo. 9.3 Budgeting and Accounting a. Financial accounting, reports and records will be in conformance with standard accrual basis accounting procedures, and responsive to the guidelines provided by the regulatory agencies connected with the project. Accordingly, the Property Manager will maintain accurate files of all resident transactions, revenue, and expenditures and prepare monthly reports for the Provider's review. b. Monthly reports will include: 1. Cash status report and financial summary with vacancy and rent loss report 2. Monthly and year -to -date budget comparisons 3. List of disbursements by budget category 4. List of accounts payable 5. Rent roll showing accounts receivable (rent delinquencies.) 6. Maintenance 15 c. The following separate accounts will be kept: 1. General Operating Account into which rental and other miscellaneous income will be deposited and from which the project's operating expenses will be paid; 2. Security Deposit Account to be funded by the residents' security deposits. 3. Replacement Reserve Account to be funded through regular contributions from the operating budget based on a capital improvements schedule of anticipated useful life and replacement needs for major items. All interest or income earned by the Replacement Reserve Account will be applied solely for major repairs, replacements or capital or structural improvements, and written approval of the Provider is required for any disbursement from this account. 4. All other accounts will be maintained by the Provider. d. The Property Manager will maintain a computerized General Ledger program that will be continually updated to meet the accounting and reporting needs of the project and to produce a quality audit trail. e. The Property Manager will establish and maintain a comprehensive system of records, books and accounts in a manner approved by the Provider and its designated accounting firm. Property Manager will maintain such books and records as to satisfy the reporting requirements established under the affordability restrictions imposed on the project by the regulatory agencies or permanent lenders. All records, books and accounts will be subject to examination during regular hours of business by any authorized representative of the Provider. f. The Property Manager will carefully monitor income and expenses to allow for cost control, prompt identification of potential problems and sufficient lead -time to develop plans to meet project's needs. g. The Property Manager will review major budget variances with the Provider and appropriate actions will be taken to ensure that monthly cash flow is sufficient to meet the project's operating expenses and deposits to the reserve account. h. The Property Manager will be responsible for approving all routine purchases. i. The Property Manager will obtain contracts, materials, supplies and services on the most advantageous teinis available to the properties, and will solicit bids, either formal or informal, for those items that can be obtained from more than one source. For non - emergency expenditures that exceed Five thousand dollars ($5,000), the Property Manager will obtain at least three bids in writing. In cases of emergency, the Property Manager may take necessary action and expend necessary funds, communicating with Providers as soon as possible after the fact. j. The Property Manager will review all pertinent Regulatory Agreements and create a manual of instructions, schedules and tickler files indicating relevant deadlines, reporting formats, etc. This manual will be available to bookkeeping and accounting personnel of the Property Manager and to any accounting firms hired to provide audits or other reports for the project. The Property Manager will systematically review this information and perform the related tasks associated with Regulatory Agreements. The Property Manager will report directly to the Provider and maintain detailed files on such reports for monitoring purposes. 16 9.4 Annual Financial Statement or Audit a. Under the teiins of the HOME, CDBG and Supportive Housing Program loans, if, in any year, a Provider receives more than $300,000 in federal benefits they are required to provide HCD with an annual audit prepared by a CPA. Receipt of less than $300,000 requires only an annual financial statement. b. The audit must be provided within 30 days of the fiscal year end of the Provider. c. Audits are a Provider expense. 9.5 Insurance a. The Provider will arrange for the property to be insured against loss by fire and such other hazards, casualties, liabilities and contingencies and in such amounts and for such periods as required by the Legally Binding Agreement and any regulatory agreement. The cost of such insurance will be reimbursed from the Annual Operating Budget. b. The Provider will obtain competitive bids to ensure the most cost effective coverage available, and both the coverage and the carrier(s) will be reviewed regularly. All insurance policies and renewals will be issued by a carrier and in a form acceptable to the Provider, all parties required pursuant to the Legally Binding Agreement and any regulatory agency. Property insurance policies will name the Provider and, as required, regulatory agencies as additional loss payees and liability insurance policies will name the Provider, all parties required pursuant to the Legally Binding Agreement and, as required, regulatory agencies as additional insured. c. The Property Manager will maintain a file of all Insurance Certificates and a tickler file of all insurance coverage and will contact the Provider when insurance is about to lapse. The Property Manager will be the first contact for any insurance claim concerning the property. The Property Manager will keep the Provider appraised of all discussions of settlement or lawsuit. d. The Property Manager will arrange for a Fidelity Bond for all Property Manager's employees insuring against any losses due to employee dishonesty. The Fidelity Bond will cover loses up to at least one month's worth of rent potential. 9.6 Files a. The Property Manager will keep all project files. b. Property Manager will maintain resident files with the following information: 1. Original resident Application; 2. Lease and Addenda; 3. Income Verifications forms and Rent Calculation form; 4. Information needed as proof of other eligibility criteria; 5. Signed statement of residents rights and responsibilities; and 6. Any correspondence between resident and Property Manager. c. The Property Manager will maintain property maintenance and work order files. Maintenance files will be maintained by project and unit and will contain pertinent records for the upkeep of the unit since rehabilitation.. d. The Property Manager will maintain quarterly progress reports required by the HCD for at least two years. e. Funding sources require that resident records be kept for a minimum of three years past their residency in the project 17 9.7 Reporting and Evaluation a. The Property Manager will have a reporting and evaluation system in place that demonstrates compliance with programmatic requirements for residents and rents, meets the Providers needs for information and results in accurate and timely reports to oversight agencies. Typically management reports will include the following types of information: 1. Occupancy Move -ins, move -outs, vacancies, compliance with income and rent requirements for regulatory Agreements. 2. Work Orders Emergencies and other work requested, number, nature and time to complete. 3. Inspections Status of unit and system inspections, comments on conditions. 4. Rent Status Amount delinquent, status of collection efforts 5. Legal Actions Number and type of notices sent, status of pending legal action. 6. Resident Services Status of current and upcoming activities, participation and results 7. Incident Reports Police or fire department calls, noteworthy incidents involving residents or property. b. The Property Manager will prepare and submit to Providers all monthly financial reports within fifteen days of the previous month. To guarantee adequate cash flow, Providers must submit required documents to lenders within 10 days of their receipt. If the Provider does not submit a financial report in a timely manner, the Property Manager will submit the report to the regulatory agency by the required deadline. c. Each Provider will clarify with the Property Manager those reports that the Provider will be responsible for preparing and submitting. d. The Property Manager will report monthly to the Collaborative Board of Directors or designated representative. 10. SOCIAL SERVICE PROGRAM 10.1 Range of Services A full range of support services will be provided to assist residents in successfully maintaining their housing. 10.2 Working Relationships The Property Manager will work closely with Service Providers whose clients are residents of APC TPH. The Property Manager will meet regularly with Service Providers to discuss resident behaviors that are disruptive to the community and which could lead to eviction. The Property Manager and Service Providers will try to develop plans and intervene in ways that will enable a resident to keep their housing or find appropriate alternatives when possible. This relationship will include seeking advice on handling resident behavioral problems, suggestions for reasonable accommodations and assistance in organizing resident services related to the provision of housing. 18 10.3 Confidentiality The Property Manager understands that the relationship between Service Provider and client may require confidentiality. The Service Providers are responsible for understanding and exercising their legal obligations to report certain behaviors to the Property Manager or the wider community. 19 Attachment II LIST OF LEGALLY BINDING AGREEMENTS Page 1 of 2 Organization Property(ies) Use 1 Alameda Point Collaborative 2810 Barbers Point 200 Corpus Christi 500 Corpus Christi 530 Corpus Christi 550 Corpus Christi 2501 Pensacola Road 12 housing units 2 Building Futures with Women and Children 2500 Barbers Point Road 2520 Barbers Point Road 2530 Barbers Point Road 53 housing units 3 Dignity Housing West 230 Corpus Christi 240 Corpus Christi 109 Orion Street 111 Orion Street 103 Stardust Place 105 Stardust Place 30 housing units 4 Operation Dignity 100 Moonlight Terrace 102 Moonlight Terrace 2300 Rainbow Court 2301 Rainbow Court 2320 Rainbow Court 2350 Rainbow Court 2370 Rainbow Court 28 housing units 5 Resources for Community Development 451 Corpus Christi 471 Corpus Christi 501 Corpus Christi 531 Corpus Christi 551 Corpus Christi 571 Corpus Christi 450 Pensacola Road 500 Pensacola Road 530 Pensacola Road 550 Pensacola Road 570 Pensacola Road 2500 Pensacola Road 2361 Rainbow Court 2391 Rainbow Court 331 Stardust Place 32 housing units Page 1 of 2 C:\My Documents\APC \General \lba \tasks and schedule attach a 001101.wpd Page 2 of 2 Organization Property(ies) Use 6 UA Housing 147 Barbers Point 149 Barbers Point 201 Corpus Christi 250 Corpus Christi 251 Corpus Christi 270 Corpus Christi 271 Corpus Christi 300 Corpus Christi 301 Corpus Christi 330 Corpus Christi 331 Corpus Christi 350 Corpus Christi 351 Corpus Christi 370 Corpus Christi 371 Corpus Christi 450 Corpus Christi 470 Corpus Christi 113 Orion Street 115 Orion Street 117 Orion Street 2580 Pensacola Road 45 housing units 7 Alameda Point Collaborative Building 92 warehouse and industry 8 Alameda Point Collaborative Building 101 community center 9 Alameda Point Collaborative Building 607 interim office, long term industry 10 Alameda Point Collaborative Building 613 interim office; long term child care 11 Alameda Point Collaborative Part of Parcel 98 bordered by Main and Barbers Point and Part of Parcel 99 that was ball field landscape nursery and community garden C:\My Documents\APC \General \lba \tasks and schedule attach a 001101.wpd Page 2 of 2 Alameda Reuse and Redevelopment Authority Interoffice Memorandum December 7, 2001 TO: Honorable Members of the Alameda Reuse and Redevelopment Authority FROM: Doug Yount Development Services Director SUBJECT: Report and Recommendation from the Development Services Director Regarding the APAC's Recommendation to Retain the Admiral's House for Cultural and Civic Uses, and Recommendation to Undertake a Business Plan to Study Feasibility Background The Alameda Point Advisory Committee (APAC) has been involved in reviewing and commenting upon the draft General Plan Amendment (GPA) that will provide policies and requirements for the long -term development of Alameda Point. The proposed GPA and Environmental Impact Report will be acted upon by the City Council in March, 2002. As part of its review of the GPA, the APAC requested that the Admiral's House be retained by the ARRA for civic and cultural uses. In response, staff added a policy to the Draft GPA to preserve the Admiral's House for civic and cultural uses. However, the APAC's request that the ARRA retain ownership of the House is not contained in the Draft GPA because it is not the appropriate document to address how the property should be preserved for those uses, but rather to provide the land use designation that would allow such uses. Given the limited policy nature of the GPA, the APAC requested that APAC member Jay Ingram (Recreation and Parks Commission liaison to the APAC) bring the matter of the ARRA retaining ownership of the Admiral's House to the Recreation and Parks Commission. The Recreation and Parks Commission considered retention of the Admiral's House at its October 11 meeting. Discussion Recreation and Parks staff recommended that a Business Plan be prepared for the Admiral's House prior to any decision to retain the House by the ARRA for civic and cultural uses. A Business Plan would include an analysis of the condition of the facility and capital improvement costs required for renovation of the facility. The Plan would also address programming options and revenue generation opportunities required for future maintenance and operations.