2002-09-04 ARRA PacketAGENDA
Regular 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. CONSENT CALENDAR
2 -A. None.
3. ACTION ITEMS
Wednesday, September 4, 2002
Meeting will begin at 5:30 p.m. -
City Hall will open at 5:15 p.m.
3 -A Report and recommendation from the Executive Director to enter into the Alameda Point
Beautification Agreement / Addendum to the Property Management Agreement with
Alameda Point Community Partners.
4. ORAL REPORTS
4 -A. Oral report from APAC
4 -B. Oral report from the Executive Director (non- discussion items).
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 TO CLOSED SESSION OF THE ARRA TO CONSIDER
CONFERENCE WITH REAL PROPERTY NEGOTIATOR:
7 -A. Property:
Negotiating parties:
Under negotiation:
Alameda Naval Air Station
ARRA, Navy and Alameda Point Community Partners
Price and Terms
ARRA Agenda - September 4, 2002 Page 2
This meeting will be cablecast live on channel 15. The next regular ARRA meeting is
scheduled for Wednesday, October 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.
CITY OF ALAMEDA
Inter -office Memorandum
August 29, 2002
To: The Honorable Chair and Members of the Alameda Reuse and Redevelopment
Authority
From: Jim M. Flint
Executive Director
Re: Report and Recommendation from the Executive Director regarding the Alameda
Point Beautification Agreement / Addendum to the Property Management
Agreement with Alameda Point Community Partners
Background
On July 16, 2002, the ARRA/City Council /CIC approved a First Amended Exclusive
Negotiation Agreement (ENA) with Alameda Point Community Partners (APCP.). The First
Amended ENA no longer anticipates preparation of an Asset Management Agreement as many
of the rights and obligations of such an agreement are contained in the existing Property
Management Agreement. In addition, one of the key components of a proposed Asset
Management Agreement, a mechanism to allow for initial investment in beautification efforts
prior to property conveyance, can be addressed in a Beautification Agreement. Staff has
prepared, and APCP has approved, the attached Beautification Agreement for ARRA's
consideration.
Discussion /Analysis
A primary goal of retaining a master developer to acquire and build -out Alameda Point was to
select a private sector partner with financial resources to provide immediate revitalization of the
base. APCP has consistently expressed its willingness to invest its funds in beautification efforts
prior to taking title to the property.
The attached Beautification Agreement, which is an addendum to the existing Property
Management Agreement, provides a mechanism for constructing beautification measures such as
enhanced landscaping, new signage and monumentation, and other aesthetic improvements.
Such beautification efforts also enhance APCP's ability to attract new tenants to the property
under its role as Property Manager, which further benefits APCP in'Ntlives brokerage
fees for new tenancies.
Dedicated to Excellence, Committed to Service
G.\Comdev \Base Reuse& Rcdevp\ARRA\STAFFRBP\ 2002\ BeautificationAgrmnt .APCF.o9o402.doc
The Honorable Chair and Members of the
Alameda Reuse and Redevelopment Authority
August 29, 2002
Page 2
The attached Agreement provides six criteria for investing in beautification measures:
• the projects are consistent with APCP's master planning for the site;
• projects will not be required to be removed or destroyed as part of APCP's installation
and construction of backbone infrastructure;
• the projects must be consistent with the overall theme for future development of the
site;
• projects will not interfere with environmental clean -up of the site;
• an agreed upon reimbursement mechanism is determined; and
• an agreed upon security mechanism to ensure that the improvements are constructed is
in place.
While APCP has agreed to fund improvements that meet the above criteria, the Agreement
provides that, in the event that APCP voluntarily terminates the ENA process or it is terminated
for cause and a DDA is therefore not executed, ARRA will repay APCP for any approved
expenses incurred for beautification measures. The Agreement provides for a range of options as
to how that reimbursement will occur (in cash, over time with interest, through conveyance of an
asset of equal value, etc.). The contingent obligation to repay APCP for any approved
beautification work, should a DDA not be executed (under certain circumstances), allows APCP
to be compensated for improvements it installed on property that will be owned by ARRA and in
which APCP will no longer have an interest (i.e., without a DDA, APCP will terminate its role as
master developer).
The Beautification Agreement outlines a process for approving individual beautification projects
and project - specific budgets. With an approved Beautification Agreement, APCP will propose
specific beautification projects. It is anticipated that there will be an initial beautification project
that could be followed up by several additional projects over the next two years. Conceptual
designs will be prepared and presented to the Alameda Point Advisory Committee (APAC) and
to the extent that the property is within an historic district, to the Historical Advisory Board
(HAB), for review and comment. Following this review, the concept plans and proposed budget
will be presented to the ARRA for final review and approval. Once ARRA has approved the
conceptual design plans, APCP will prepare final plans and specifications, bid the project and
construct the improvements.
Should the Beautification Agreement be approved, staff anticipates that APCP will submit an
initial beautification project for ARRA's consideration before the end of the year.
Dedicated to Excellence, Committed to Service
G: \Comdev \Base Reuse& Rcdevp\ ARRA\ STAFFREP\ 20021BeautificationAgrmnt .APCP.090402.doc
The Honorable Chair and Members of the
Alameda Reuse and Redevelopment Authority
Fiscal Impact
August 29, 2002
Page 3
Approval of the Beautification Agreement has no immediate fiscal impact as APCP will fund
any approved beautification project. However, ARRA has contingent liability to repay APCP for
the installation of the beautification projects if a DDA is not executed before the expiration of the
ENA period (January 15, 2005), (unless APCP voluntarily terminates the ENA or it is terminated
by the ARRA for cause). Sources of repayment could include lease revenues, tax increment
generated in the Alameda Point Improvement Project (APIP) area, land sales proceeds, etc. This
repayment could be in cash, over time with interest (which allows ARRA to manage its cash
flow) or through conveyance of an asset of equal value.
Recommendation
The Executive Director recommends that the ARRA Board approve the attached Alameda Point
Beautification Agreement /Addendum to the Property Management Agreement with APCP.
JF:DY:DP:la
Attachment: Beautification Agreement
Respectfully submitted,
James M. Flint
City 1 . ager/
ive Director
By: Doug Y• • nt
Developme Services Director
Dedicated to Excellence, Committed to Service
G: \ComdevlBase Rcuse& Redcvp\ ARRA \ STAFFREP\ 2oo21BeautificationAgrmnt .APCP.o9o4o2.doc
CITY OF ALAMEDA
Inter - office Memorandum
July 3, 2002
To: The Honorable Mayor and Members of the City Council
The Honorable Chair and Member of the Alameda Reuse and Redevelopment Authority
The Honorable Chair and Members of the Community Improvement Commission
From: Jim M. Flint
City Manager/Executive Director
Re: Approval of a First Amended Exclusive Negotiation Agreement with Alameda Point
Community Partners to Modify Existing Language Regarding a $500,000 Payment to
the ARRA by APCP for Cost Recovery and Approval of a Memorandum of
Understanding Regarding Determination Criteria for Evaluating Requests by APCP for
Capital Investment Leases
Background
On January 15, 2002, the City, CIC and ARRA approved an Exclusive Negotiation Agreement
(ENA) with Alameda Point Community Partners (APCP) to negotiate the disposition and
development of Alameda Point. The ENA calls for a number of documents to be prepared over the
next eighteen months. One of the anticipated documents was an Asset Management Agreement.
Following completion of the Property Management Agreement on May 1, 2002, APCP indicated
that rather than focus on an Asset Management Agreement, it would prefer to go directly to
negotiating a DDA "Term Sheet" that would outline the business terms for a Disposition and
Development Agreement (DDA). It was also suggested that in lieu of an Asset Management
Agreement, a Beautification Agreement could be negotiated to allow for investment by APCP in
upgraded landscaping, signage and entryway enhancements.
Staff concurs with this approach and recommends that the City Council / CIC / ARRA approve the
attached First Amended Exclusive Negotiation Agreement and Memorandum of Understanding
(MOU), subject to prior compliance with the Property Management Agreement. The Amended
ENA removes an Asset Management Agreement as a document to be prepared under the ENA and
requires payment of $500,000 to the ARRA by no later than June 30, 2003, rather than upon
execution of an Asset Management Agreement. The MOU supplements and provides interpretation
of Section 5.6 of the ENA regarding Capital Expenditures.
Dedicated to Excellence, Committed to Service
Item # 1 (CIC)
7 -16 -02
The Honorable Mayor and
Members of the City Council
Discussion /Analysis
July 3, 2002
Page 2
When the ENA was initially being negotiated, it was anticipated that an Asset Management
Agreement would be entered into to begin the process of spurring substantial investment in the
buildings and grounds at Alameda Point. Following approval of the ENA, staff and APCP began
negotiations on an interim Property Management Agreement, which was approved by the ARRA on
May 1, 2002. It was determined that by appointing APCP as ARRA's exclusive leasing agent and
providing for building - specific negotiations on the treatment of lease revenues on new leases that
require substantial up -front investment by APCP, the key provisions of an Asset Management
Agreement were being addressed in the Property Management Agreement.
The only item not directly covered in the Property Management Agreement is investment in the
property grounds above and beyond the maintenance work required. APCP and staff feel that this
issue can be addressed through a Beautification Agreement that would cover the types of desired
improvements and reimbursement of any investment made by APCP in such improvements in the
event that redevelopment of Alameda Point does not go forward by APCP. Staff anticipates bringing
a Beautification Agreement to the ARRA Board at its August 7 meeting for the Board's review and
consideration.
Given that the Property Management Agreement addresses most of the concerns of an Asset
Management Agreement and that a Beautification Agreement will cover investment in the grounds,
APCP and staff feel that an Asset Management Agreement is no longer necessary.
The ENA calls for the Asset Management Agreement to be adopted by July 1, 2002, and, contingent
upon its execution payment to ARRA of $500,000 as a partial reimbursement its costs prior to the
Asset Management Agreement. It is recommended that the ENA be amended to require payment
of the $500,000 upon certification of the General Plan Amendment EIR, but no later than June 30,
2003.
The attached MOU supplements and provides interpretation to Section 5.6 of the ENA. Section 5.6
of the ENA deals with Capital Expenditures (e.g., beautification of facilities in conjunction with
adaptive reuse, tenant improvement costs, etc.). Section 5.6 of the original ENA states that the
treatment of capital expenditures by APCP will be addressed in a Property Management Agreement
or Asset Management Agreement. The Property Management Agreement references capital
expenditures and states that they will be addressed on a case -by -case basis. Because we are not
going forward with an Asset Management Agreement, APCP expressed a desire to have more
explicit criteria developed for the use of lease revenues generated as a result of capital expenditures
by APCP. Therefore, the attached MOU was prepared outlining criteria to be used for evaluating
the proposed uses of lease revenue generated via capital investment leases. Criteria include
permitting APCP to recoup its initial investment over time, reinvesting in the redevelopment of the
Dedicated to Excellence, Committed to Service
The Honorable Mayor and
Members of the City Council
July 3, 2002
Page 3
base, undertaking planning and feasibility studies that further redevelopment, etc. All expenditures
of new lease revenues will be approved by ARRA.
Fiscal Impact
There is no fiscal impact to the City's general fund or the CIC budget. ARRA's budget will not-be
impacted because the required payment of $500,000 to the ARRA by APCP will still occur during
the 2002 -03 fiscal year. However, there may be a loss of interest income on this payment if made
at the end of the fiscal year. There is no fiscal impact to approving the MOU because any lease
revenue generated will continue to be reinvested in Alameda Point consistent with the Lease in
Furtherance of Conveyance (LIFOC) and ARRA's no -cost EDC.
Recommendation
The City Manager/Executive Director recommends that the City CounciIICIC /ARRA approve the
attached First Amended Exclusive Negotiation Agreement and approve the attached MOU
supplementing and interpreting Section 5.6 of the ENA, subject to prior compliance with the
Property Management Agreement..
By:
Respectfully submitted,
James M. Flint
City Manager/Executive Director
JF:DY:DP :la Doug Yount
Development Services Director
Attachments: Amended Exclusive Negotiation Agreement
Memorandum of Understanding
Dedicated to Excellence, Committed to Service
FIRST AMENDED ALAMEDA POINT
EXCLUSIVE NEGOTIATION AGREEMENT
• THIS FIRST AMENDEDALAMEDA POINT EXCLUSIVE NEGOTIATION
AGREEMENT (the "Agreement ") is entered into this day of 2002 —
( "Agreement Date "), by and between the ALAMEDA REUSE AND REDEVELOPMENT
AUTHORITY, a public entity lawfully created and existing under the laws of the State of
California ( "ARRA "), THE ALAMEDA COMMUNITY IMPROVEMENT
COMMISSION, a Redevelopment Agency (the "CIC "), and the CITY OF ALAMEDA, a
municipal corporation (the "City "), ( collectively "Alameda ") and ALAMEDA POINT
COMMUNITY PARTNERS, a Limited Liability Company (the "Developer "). Alameda and
Developer are collectively referred to as the "Parties."
In consideration of the mutual covenants contained herein, Alameda and Developer agree
as follows:
Section 1. Negotiations
1.1 Good Alameda and the Developer agree for the Term
set forth in Section 2 of this Agreement to negotiate diligently and in good faith to prepare the
agreements and complete the tasks set forth in Section 3 below to accomplish the redevelopment
of certain real property (the "Site ") located within the boundaries of the Alameda Point
Improvement Project ( "APIP ") redevelopment area. The Site is shown on the "Map of the
Site," attached hereto as Exhibit A and incorporated herein by reference.
2.2 Exclusive. During the Term (as hereinafter defined), Alameda agrees not
to negotiate with any other person or entity regarding the development and control of the Site
(and all portions thereof) or solicit or entertain bids or proposals to do so.
Section 2. Term.
2.1 Term. The "Term" of this Agreement shall be twenty four (24) months
commencing on the Agreement Date (as such may be extended pursuant to Section 2.2 below).
2.2 Extensions of the rm
(a) The Executive Director of the ARRA, and the Executive Director
ofthe CIC, and the City Manager of the City shall collectively, at the written request of the
Developer, approve an extension of the Term for a period of one year, which approval shall be
conditioned upon the following: (1) No Event of Default (as defined in Section 7 below) with
respect to Developer then exists and remains uncured, and (2) the Developer and Alameda
negotiators have agreed on a term sheet describing the significant elements of a Disposition and
Development Agreement for purposes finalizing the draft DDA and for submittal to the Alameda
Community Improvement Commission ( "Term Sheet ").
First Amended ENA
6 -20 -02
(b) Extension of the Term shall be in writing. This Agreement shall
automatically terminate upon the expiration of any extension entered into pursuant to the
provisions of this Section. For the purpose of this Agreement, the term "Term" shall mean and
refer to the Term, as it may be extended pursuant to the provisions of this Agreement.
Section 3. Tasks to be Completed within the_Term of the ENA.
3.1 Tasks. During the Term, Alameda (or applicable subdivision thereof) and
the Developer shall utilize their collective good faith efforts and due diligence to negotiate and
enter into the following agreements or comparable documents and complete the following tasks
within the time periods set forth in the Approved Time Schedule:
a) A property management agreement between ARRA and Developer
( "Property Management Agreement ") to transfer as mutually agreed, the management
responsibilities of the Site from the ARRA to the Developer.
b) A services funding agreement or similar agreement ( "Services
Funding Agreement ") between City and Developer which obligates Developer to fund certain
amounts, on a declining basis, for various municipal services provided by Alameda to the Site,
which funding obligation shall be contingent upon a mutually satisfactory agreement regarding
the leasing/operational revenue generated from the Site.
c) A predator management agreement or similar agreement
( "Predator Management Agreement ") among ARRA, City, Developer and the U.S. Fish and
Wildlife Service or other parties related to the management effort to manage the predators of the
California Least Tern pursuant to the Biological Opinion issued by the United States Navy on
March 22, 1999 in furtherance of the Endangered Species Act.
d) An agreement between Developer and the City to provide for the
funding by Developer and expedited processing of all land use entitlement applications including
all environmental review required under the California Environmental Quality Act ( "Expedited
Processing Agreement ").
e) ARRA and the Developer shall endeavor to effect an agreement
between the ARRA and the U.S. Navy to transfer all or portion(s) of the Site to ARRA prior to
completion of required environmental remediation under Section 120 3 C of the
Comprehensive Environmental Response, Compensation and Liability Act or other appropriate
legal authority ( "Early Transfer Agreement "), which may entail a Finding of Suitability for
Early Transfer ( "FOSET "), the execution of an environmental services agreement, the provision
of various insurance products and other activities ( "Early Transfer Related Activities ").
f) Developer and Alameda shall endeavor to effect a tidelands trust
exchange agreement or similar agreement between the City and the State Lands Commission to
implement the exchange of lands in to and out of the Tidelands Trust ( "Tidelands Trust
Exchange Agreement "), pursuant to State legislation adopted in 1999.
First Amended ENA
-2- 6 -20 -02
g) A plan ( "Master Plan ") for the final development of the Site and
all land use entitlements (including General Plan and zoning, but not property subdivision)
necessary to implement the Master Plan.
h) A Term Sheet for a Disposition and Development Agreement
( "DDA ") as soon as practicable and then a DDA itself, both of which, among other provisions,
shall address:
First Amended ENA
(1) The conditions to property at the Site being transferred, and
the manner or manners in which property at the Site will be
transferred to and held and developed by the Developer;
(2) The amount and timing of payments to the CIC to secure
rights pursuant to the DDA;
The timing and method for providing financing
commitments;
(3)
(4) The process for ensuring compliance with applicable
environmental laws;
The timing and manner in which the Developer will use to
provide drawings, elevations, models and other depictions
of the design and construction details for development of
the Site;
(5)
(6) The timing and method for securing all required regulatory
approvals;
(7)
The manner for assuring the Developer's compliance with
all CIC and City requirements applicable to the
development of the Site including, but not limited to:
(A) The Nondiscrimination and Nonsegregation
requirements of the Community Improvement Plan
for the APIP;
(B) The requirements for training and employment
opportunities to be extended to low- income
residents of the project area(s); and
(C) Involvement of Small Disadvantaged Businesses;
and
(8) The method by which completion of the project will be
secured.
-3-
6 -20 -02
(9)
Due to the uncertainty of the Parties in their collective
ability to finalize negotiations with various governmental
authorities which are necessary to complete certain
Transaction Documents (e.g. Early Transfer Agreement
and Tidelands Trust Agreement) prior to the expiration of
the Term, the establishment of conditions precedent to
other DDA obligations related to the further negotiation of
such uncompleted Transaction Documents with the
applicable governmental authorities.
(10) Preparation of all studies, planning and entitlement work
necessary to implement the proposed overhead tram and
other elements of the transportation solution described in
Developer's Proposal.
(11) Preparation and processing of all environmental studies and
other entitlements necessary to implement any and all of
the above tasks and/or agreements.
(i) A Development Agreement ( "DA ") defining the rights vested in
Developer to develop the project to the scope, uses, densities and intensities described in the
Master Plan and other implementing regulatory documents pursuant to the rules and regulations
of Alameda set forth and referenced therein.
(j) The Services Funding Agreement, Predator Management
Agreement, Expedited Processing Agreement, Early Transfer documentation, Tidelands Trust
Exchange Agreement, Master Plan, DDA, and DA and other documents prepared pursuant to
subparagraphs (b) through (i) are, unless specifically referenced, individually referred to as a
"Transaction Document" and collectively referred as "Transaction Documentation."
3.2 Delivery of Documents and Reports. Developer shall provide Alameda
with copies of all reports, studies, analyses, correspondence, and similar documents, but
excluding confidential or proprietary information which Alameda may not keep confidential
pursuant to Section 9, prepared or commissioned by the Developer with respect to this
Agreement and the Site, promptly upon their completion and internal review by the Developer.
Alameda shall provide the Developer with copies of all reports, studies, analyses,
correspondence, and similar documents prepared or commissioned by Alameda with respect to
this Agreement and the Development, promptly upon their completion and internal review by
Alameda. Nothing in this Section 3.2 obligates Alameda to undertake any studies or analyses
other than as required by CEQA.
3.3 Basis for Negotiations. The negotiations conducted under this Agreement
shall be based on the development concept for the Site that is outlined in the Request for
Business Proposals ( "RFBP ") issued by ARRA in April, 2001 and the Response to the RFBP
submitted by the Developer and selected by ARRA on August 9, 2001, and other subsequently
submitted correspondence. It is understood that the matters set forth in the "Development
Proposal" section pf the Response submitted by the Developer are not being approved by or
First Amended ENA -4-
6 -20 -02
with the execution of this Agreement, nor have they or any of them been approved or selected as
a preferred alternative but are the subject of negotiation described in this Agreement. It is
explicitly understood that environmental review of feasible project alternatives must be
completed and/or addressed in accordance with applicable environmental laws before the ARRA,
the CIC, or the City approves any development proposal or otherwise grants any discretionary
approval with regard to development of the Site.
Section 4. Approved Time Schedule. Attached hereto as Bxhibit B to this Agreement are the
initial time estimates of the Parties regarding the requisite time periods necessary to complete the
negotiations concerning each Transaction Document and the other tasks outlined in Section 3 as
of the Agreement Date. ( "Approved Time Schedule"). The Parties acknowledge that the current
Approved Time Schedule is based upon their current knowledge of the steps and procedures that
are necessary to complete the negotiations concerning each of the Transaction Documents;
provided, however, the Parties further acknowledge and agree that additional unknown steps,
procedures and/or delays beyond the control of the Parties may result in all or portions of the
Approved Time Schedule not being feasible. Delays caused by actions and/or inactions of any
governmental and/or quasi - governmental authority which is a party to any Transaction
Document(s) and/or has jurisdiction over any Transaction Document(s) shall correspondingly
adjust the time necessary for completing such applicable Transaction Document(s). The Parties
acknowledge and agree that the usage of the Approved Time Schedule is as a conceptual guide
for their collective scheduling of the negotiation process to complete the various Transaction
Documents; provided, however, subject to each Party utilizing good faith efforts and due
diligence, failure to comply with such schedule shall not be a cause for extension of the Teim or
any of the time periods in this Agreement nor a breach of either Parties' obligations under this
Agreement or a failure of any condition precedent.
Section 5. Alameda Cost Recovery/Reimbursement.
5.1 Pre - development Costs; Deposit. Pre - development Costs shall be paid and
reimbursed as provided in this Section 5. "Pre- development Costs" means the (i) cost incurred
for the participation of those persons described on the "Roles and Responsibilities" diagram
attached hereto as Exhibit C, and (ii) all third party consultants, attorneys, or other professional
fees which relate to the transaction described by this Agreement. Predevelopment Costs do not
include Developer's costs of processing land use entitlements and environmental review, which
costs are to be funded by Developer pursuant to the Expedited Processing Agreement. Prior to
or upon approval of this Agreement by Alameda, Developer shall pay to Alameda the sum of
one hundred and fifty thousand dollars and 00/100 ($ 150,000.00) as a deposit against Pre-
development costs to be incurred by Alameda after the Initial Period as defined below.
5.2 Initial Period. The "Initial Period" consists of the period beginning on
August 9, 2001 and ending July 31, 2002.
5.2.1 Each Party to Bear its Own Pre - development Costs in the Initial
Period. The Developer and Alameda shall each pay their respective Pre - development
Costs incurred during the Initial Period. Upon the expiration of the Initial Period, the
Developer shall elect, in writing either (1) to commence and continue to reimburse
Alameda's Pre - development Costs incurred after the Initial Period during the remainder
First Amended ENA
-5- 6 -20 -02
deficit accrued in the Negotiating Cost Account Ledger. Alameda and the Developer shall
continue this process for each ninety (90) day negotiating period untilsthis Agreement is
terminated; provided, however, that in any twelve month period, Developer shall not be
responsible for reimbursement of Pre - development Costs in excess of the Annual Budget as
attached hereto or as revised as provided below. If a deficit or a surplus of greater than ten (10)
percent of the pro -rated Annual Budget has accrued in the Negotiating Cost Account Ledger for
three successive quarters, or for three quarters in any calendar year, Developer and Alameda
shall meet and confer to assess the sufficiency of the Annual Budget amount, and may, upon the
written assent of each, revise the Annual Budget. Thereafter, Quarterly Deposits shall consist of
twenty -five percent (25 %) of the Annual Budget as revised plus any deficit accrued in the
Negotiating Cost Account Ledger. Upon termination of this Agreement any surplus funds in the
Negotiating Cost Account remaining afier the completion of the ninety (90) day negotiating
period during which this Agreement was terminated and afier payment of costs incurred by
Alameda during such 90 -day negotiating period, shall be returned to Developer. If there is a
deficit noted in the Negotiating Cost Account Ledger at the conclusion of the ninety (90) day
negotiating period during which this Agreement terminated, then such amount shall be due and
payable by the Developer. Any extension of this Agreement shall extend the cost recovery
procedures set forth in this section.
5.4 Review of Negotiating Cost Account Ledger. Upon reasonable prior
notice to Alameda, Developer may review the Negotiating Costs Account Ledger to determine
whether invoices and charges to the Account reflect actual Pre - development Costs. If the
Developer disputes any invoice or charge to the Negotiating Cost Account, Developer shall
notify Alameda, and if the parties so agree that an invoice or charge has been inappropriately
charged against the account, Alameda shall deduct the amount of the inappropriate invoice(s) or
charge(s) from the sum it is entitled to draw from the Negotiation Cost Account for the next
ninety (90) day negotiating period, or if such inappropriate invoice or charge is identified after
the termination of this Agreement, Alameda shall promptly pay such amount of Developer.
5.5 Duplication of Costs. To the extent reasonable while maintaining the
validity and integrity of work product, and consistent with Alameda's obligations to obtain
independent third party evaluations, the Parties shall use their respective Best Efforts to allocate
responsibilities to minimize duplication in costs for third party consultants, and Alameda shall
use its good faith efforts and due diligence to structure the incurrence of its Pre - development
Costs consistent with the Approved Budget.
5.6 Capital Expenditures. "Capital Expenditures" shall mean
redevelopment related expenditures authorized by Alameda and incurred by Developer which
shall include, but are not limited to, the beautification of the facilities within the Site in
conjunction with adaptive reuse, tenant improvement costs incurred in conjunction with leasing
transactions, and any other redevelopment related expenses which typically would be funded by
the "Owner/Landlord" of a project. The Parties have addressed the principles for
reimbursement of Developer for investments in redevelopment related improvements in
connection with certain renewed or new leases during the Term of this ENA in a Memorandum
of Understanding Regarding Determination Criteria for Evaluating Requests by APCP for
Capital Investment Leases (attached hereto as Exhibit F).
First Amended ENA
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Section 6. Termination. This Agreement shall terminate upon the occurrence of any of the
following circumstances:
a) The Agreement may be terminated in writing by the non- defaulting party
upon the occurrence of an Event of Default (as defined in Section 7 below) and the expiration of
any period of a right to cure without such cure occurring.
• b) • Developer determines, in its sole discretion, to terminate this Agreement
and provides fifteen (15) working days notice of such determination to Alameda.
c) Developer elects, in writing, not to commence reimbursement of Pre -
development Costs after the Initial Period as provided in Section 5.2.
d) Expiration of the Term, including extensions thereto as provided in
Section 2.2.
' Section 7. Events of Default
a) Default of Developer
i) Failure of Developer to Negotiate in Good Faith. In the event the
Developer fails to negotiate in good faith to accomplish any task identified in Section 3,
Alameda may give written notice ( "Alameda Default Notice ") thereof to the Developer
specifying in reasonable detail the grounds for Alameda's determination that the Developer has
failed to negotiate in good faith. Following the receipt of such notice, the Developer and
Alameda shall have ten (10) working days to resolve the dispute identified in the Alameda
Default Notice; provided, however, if such cure cannot be completed within such time period, if
Developer commences such cure within such time period and diligently prosecutes such cure
thereafter, such time period shall be correspondingly extended for a period of time not to exceed
forty -five (45) working days from the giving of the Alameda Default Notice. If such dispute is
not resolved to the reasonable satisfaction of each Party within such time period, this Agreement
may be terminated by delivery of written notice ( "Termination Notice ") from Alameda to
Developer which shall state the grounds for Alameda's determination that such dispute remains
unreconciled.
ii) Failure of Developer to Make Requested Deposits into the
Negotiating Cost Account. In the event the Developer fails to make the Initial Deposit or any
Quarterly Deposit pursuant to the procedure set forth in Section 5 of this Agreement, Alameda
shall give written notice thereof to the Developer specifying the amount of the deposit which was
not made. Following the receipt of such notice, the Developer shall have ten (10) days to make
the required deposit. If the Developer has not then made the required deposit, this Agreement
may be terminated by Alameda.
iii) Breach by Developer of Section 8 of this Agreement, In the event
Developer breaches the provisions of Section 8 of this Agreement, Alameda shall give written
notice thereof to Developer. Following receipt of such notice, if Developer fails to cure the
default within ten (10) days of such notice, Alameda shall have the right to terminate this
Agreement by written notice to Developer.
First Amended ENA 4.
6 -20 -02
iv) Bankruptcy or Insolvency. Bankruptcy or insolvency of Developer
or any of its constituent entities.
b) Default of Alameda. In the event Alameda fails to negotiate in good faith
to accomplish any task identified in Section 3, the Developer shall give written notice
( "Developer Default Notice ") thereof to Alameda specifying in reasonable detail the grounds
for the Developer's determination that Alameda has failed to negotiate in good faith. Following
the receipt of such notice, Alameda and the Developer shall have ten (10) working days to
resolve the dispute identified in the Developer Dispute Notice; provided, however, if such cure
cannot be completed within such time period, if Alameda commences such cure within such time
period and diligently prosecutes such cure thereafter, such time period shall be correspondingly
extended not to exceed forty five (45) working days from the giving of the Developer Default
Notice. If such dispute is not resolved to the reasonable satisfaction of each Party within such
time period, this Agreement may be terminated by delivery of written notice ( "Termination
Notice ") from the Developer to Alameda which shall state the grounds for Developer's
determination that such dispute remains unreconciled. Alameda shall return any funds remaining
in the Negotiating Cost Account to Developer except to the extent such funds have been
unconditionally committed.
c) Failure to Agree Upon Transaction Documents. Notwithstanding anything
to the contrary in this Agreement, provided that each Party has complied with the provisions of
this Agreement, the failure to reach agreement upon any of the Transaction Documents or
complete any of the above identified tasks set forth in Section 3 identified in that Section shall
not be deemed an Event of Default by either party.
d) Event of Default. The occurrence of any of the events described in
Section 7(a) or 7(b) above and failure to cure within the respective cure period, if any, shall be an
"Event of Default."
e) Remedies. In any action at law or equity or other legal or administrative
proceeding to remedy an event of default of this Agreement or otherwise enforce this
Agreement, or that otherwise may arise out of this Agreement, the sole and unique remedies
shall consist of (i) mandatory or injunctive relief, (ii) writ of mandate, or (iii) a contract claim to
recover money due to Alameda or Developer as a payment of Pre - development Costs or
reimbursement of excess Pre - development Cost deposits under Section 5 of this Agreement.
Neither Alameda nor Developer shall be liable, regardless of whether the claim is based in
contract or tort, for any special, indirect or consequential damages.
Section 8. No Change in Development Team; io Assignments or Transfers.
8.1 Development Team. The Developer represents and warrants that the
constituent entities constituting the Developer are the same as identified in Developer's Proposal,
which are also set forth in Exhibit E attached hereto. Developer agrees not to change the entities
constituting the Development Team identified in its Proposal and Exhibit E without the prior
written consent of Alameda in its sole discretion, as authorized by its Boards of Directors and
City Council respectively; provided, however that the entities constituting the development team
First Amended ENA.
-9- 6 -20 -02
may transfer to wholly -owned subsidiaries, entities or affiliates without the prior consent of the
Alameda. Developer shall promptly provide notice of any such transfer to Alameda.
8.2 No Transfer or Assignment. Developer shall not assign its interest in this
Agreement or any part thereof, to any person or entity without the prior written consent of
Alameda in its sole discretion, as authorized by its Boards of Directors and City Council
respectively.
8.3 Individuals on Development Team. Developer shall endeavor to continue
to keep the individuals identified on Exhibit E assigned to perform the responsibilities identified
thereon and in the event of changes in personnel, individuals of substantially equivalent
seniority, experience and qualifications shall be assigned. Developer shall provide written notice
to Alameda of changes in its personnel and their respective responsibilities listed on Exhibit C
and shall furnish to Alameda infonnation on the seniority, experience and qualifications of any
additional or substituted individuals.
Section 9. Confidentiality of Information and Negotiations. Alameda and Developer enter
this Agreement with the understanding that the Developer may provide certain information of a
confidential nature during the negotiations of the Transaction Documentation and other tasks
identified in Section 3. Such information may be necessary for Alameda to verify information
that is relevant to the negotiations of the Transaction Documentation. Alameda and Developer
agree that they will keep confidential and not disclose any information submitted by Developer
in the course of the negotiations or preliminary drafts of Transaction Documents or other
negotiation preliminary draft documents, including financial analyses, that are identified as
privileged or confidential under the law unless ordered to do so by a final order of court.
Developer agrees to bear all costs of any litigation that is filed to determine the applicability of
public records law to documents submitted by Developer in furtherance of negotiating a DDA or
any other agreement contemplated in the Agreement. Notwithstanding the provisions of this
Section, in no event shall any party be required to disclose to any other party infoiniation which
is protected by the attorney - client privilege.
Section 10. Representatives of the Parties
10.1 The Alameda Representative. For the purpose of administering the
provisions of this Agreement, Alameda shall be represented by its Executive Director /City
Manager or such member of Alameda staff designated to act for a particular matter in writing by
the Executive Director /City Manager. In addition, Alameda shall assign the personnel to assist in
the negotiations and the completion of the tasks set forth in Section 3 in accordance with the
organization chart attached as Exhibit E to the extent such personnel remain employees or
contractors of Alameda.
10.2 The Developer Representative. For the purpose of administering the
provisions of this Agreement, the Developer shall be represented by Jay Heckenlively or such
other employee, employees, agent or agents of the Developer as are designated to act for a
particular matter in writing by the Developer. In addition, the Developer shall assign the
personnel to assist in the negotiations and the completion of the tasks set forth in Section 3 in
accordance with the organization chart attached as Exhibit E.
First Amended ENA -10-
6 -20 -02
Section 11. Commitment to Interest Bas d Negotiation. The parties agree that they will
endeavor to utilize the principals of Interest Based Negotiation to achieve consensus and resolve
disputes between the parties.
Section 12. Limitations of this Agreement/Termination
12.1. By executing this Agreement, Alameda is not committing itself to, or
agreeing to undertake: (1) exchange or transfer of land; (2) disposition of land to the Developer;
or (3) any other acts or activities requiring the subsequent independent exercise of discretionfby
the ARRA, the CIC, the City or any agency or department thereof. This Agreement does not
constitute a disposition or exchange of property by the ARRA, the City or the CIC. Execution of
this Agreement by Alameda is merely an agreement to enter into a period of exclusive
negotiations according to the terms thereof, reserving final discretion and approval by the CIC
Board of Directors, the ARRA Board of Directors or the City Council as to a DDA, or any other
agreement(s) contemplated in this Agreement and all proceedings and decisions in connection
therewith.
12.2 If a DDA has not been executed by the Parties by the expiration of the
Term or if this Agreement has otherwise been terminated in accordance with the provisions set
forth herein, neither Party shall have any further rights or obligations under this Agreement,
except as set forth in Sections 5.3, 16, and 25.
Section 13. Approval of DDA. If negotiations culminate in a DDA between the CIC and the
Developer, such DDA shall become effective only after and upon the approval of the Board of
Directors of the CIC and its execution by the Executive Director pursuant to direction of the
Board.
Section 14. Alameda Right to Obtain Information and to Consult with Others. Alameda
reserves the right to obtain information concerning the transaction described by this Agreement
from any person, entity or group; provided, however, that excepting consultants retained by
Alameda to assist in the negotiation process contemplated in this Agreement, Alameda shall not
reveal to any such persons or groups confidential or proprietary infouuation or other infoniation
kept confidential as provided in Section 9 of this Agreement.
Section 15. Developer's Right to Temporarily Suspend Negotiations. Developer shall have
the right to temporarily suspend negotiations under this Agreement for a period not to exceed
ninety (90) days on the following terms and conditions. Developer shall give Alameda at least
15 days but not more than 60 days notice of its intent to suspend negotiations ( "Suspension
Notice "). The Suspension Notice shall specify the period for which Developer is suspending the
negotiations ( "Suspension Period "). Commencing upon the date specified in such notice for
suspending negotiations ( "Suspension Date "), Alameda shall use Best Efforts to minimize
incurring any further Negotiation Costs and Third Party Consultant Fees; provided that any
reasonably added costs to Alameda to suspend or terminate contracts or other commitments in
effect on the Suspension Date and/or to reactivate such contracts or commitments after the
Suspension Date shall be reimbursable as Pre- development Costs. Such costs shall not accrue
against the Annual Budget nor cause a change in Annual Budget as provided in Section 5:3.
During the Suspension Period, Alameda shall have no obligation to incur Pre - development Costs
First Amended ENA
-11- 6 -20 -02
unless the Developer expressly directs Alameda to do so and agrees to reimburse Alameda for
any such costs. Developer acknowledges that a suspension hereunder may cause reassignment of
personnel or loss of consultant availability such that recommencement of work may involve a
start-up period.
Section 16 Nonliability of the • • ' • , the C C and the City of Alameda
16.1 Developer Warrants it Has No Claims Against the ARRA the CIC or the City:
Developer agrees that it does not now have and shall not at any time, whether before or after its
execution of this Agreement, have or make any claim or claims against Alameda, individually or
collectively, or against ARRA, the CIC or City Property (all as hereinafter defined), directly or
indirectly, by reason of any or all of the causes set forth in Section 16.3.
16.2 Nonliability of the ARRA the CIC and the City of Alameda. Subject to
Alameda's compliance with the provisions of this Agreement, Developer agrees that Alameda
shall not have any liability whatsoever of any kind or character, directly or indirectly, by reason
of any or all of the causes set for in Section 16.3.
16.3 Causes to which Nonliability Apply. The causes to which the provisions
of Sections 16.1 and 16.2 apply are as follows:
(1) Any aspect of the RFBP, including any information or material set
forth therein or referred to therein;
(2) Any modification, or suspension of the RFBP, or informalities or
defects therein;
Any defects in the selection procedure identifying Developer
conducted by ARRA or any act or omission of the ARRA with
respect thereto, or any release or dissemination of any information
submitted by Developer to the ARRA prior to the Agreement Date;
(4) The expiration of the Term, whether Initial or an extension thereof;
and
(3)
(5)
The exercise of any ARRA, CIC or City discretion, decision and
judgment set forth in this Agreement.
16.4 Developer expressly and absolutely waives any and all Claim or Claims
against the ARRA, the CIC, the City of Alameda, ARRA Property, CIC Property or City
Property, directly or indirectly, arising out of or in any way connected with any or all of the
matters set forth in Section 16.3.
16.5 Definitions. For purposes of this section, the words defined in this
paragraph shall have the meanings ascribed to them herein:
First Amended ENA -12
6 -20 -02
(1) "ARRA" "CIC" and "City of Alameda" includes their
respective members, officers, employees, agents, consultants,
successors, and assigns.
(2) "ARRA Property," "CIC Property" and "City Property" shall
include the Site and all other property of ARRA, the CIC and the
City of Alameda, real, personal or of any other kind or character;
"Claim or Claims" shall mean any and all protests, rights, —
remedies, interests, objections, claims, demands, actions or causes
of action of every kind or character whatsoever, in law or in equity,
for money or otherwise, including but no limited to Claims for
injury, loss, expense or damage, Claims to property, real or
personal, or rights or interest therein, and Claims to contract or
development rights or development interests of any kind or
character, in any CIC and/or City Property, or Claims that might be
asserted against or cloud title to CIC or City Property.
Section 17. Hold Harmless and Indemnity. The Developer shall defend, hold harmless and
indemnify the ARRA, the CIC and the City of Alameda, and each of them from and against any
and all Claims made by any third party directly or indirectly arising out of Developer's Response
to the RFBP and/or this Agreement; provided, however, such obligation shall not apply to any
claim resulting solely from an act or omission of ARRA, the CIC and/or the City of Alameda.
Section 18. Definitions. "Best Efforts" shall mean the reasonable expenditure of time and
effort on the part of the representatives of the Parties to accomplish a specified task, but shall not
mean the expenditure of funds by ARRA, the City or the CIC which are not recoverable under
the cost recovery mechanism set forth in Section 5, nor shall "Best Efforts" require either Party
to incur liabilities unless such act is otherwise explicitly required by this Agreement or by State
or federal law.
(3)
Section 19. Notices. Formal notices, demands and communications between the Parties shall
be sufficiently given if, and shall not be deemed given unless, dispatched by certified mail,
postage prepaid, return receipt requested, or sent by an express delivery or overnight courier
service that maintains written delivery records, to the office of the Parties shown as follows, or
such other address as the Parties, may designate in writing from time to time:
Alameda:
With copies to:
First Amended ENA
City of Alameda
2263 Santa Clara Avenue
Alameda, California 94501
Attention: City Manager
City of Alameda
2263 Santa Clara Avenue
Alameda, California 94501
-13- 6 -20 -02
Attention: City Attorney
Alameda Reuse and Redevelopment Authority
950 W. Mall Square
Alameda, California 94501 -5012
Attention: Development Services Director
Developer: [APCP check:] Jay Heckenlively
McClellan Park
3410 Peacekeeper Way
McClellan, CA 95652
Attention: Senior Vice President and Legal Counsel
Industrial Realty Group
1304 -C El Prado Avenue
Torrance, CA 90501
Attention: General Counsel
and
Morgan Stanley Real Estate Fund
555 California Street, Suite 2100
San Francisco, CA 94104
Attention: Chander Bains
Such written notices, demands, and communications shall be effective on the date shown
on the written delivery record as the date delivered or the date on which delivery was refused.
Notwithstanding the foregoing, Alameda may respond to Developer requests for information by
delivering requested information to only the address of the requesting representative of the
Developer.
Section 20. Entry On Property. This Agreement does not grant the Developer a license to
enter onto the Property. If the Developer wishes to enter onto the Property for the purpose of
inspecting the Property or testing any conditions on the Property, then the Developer must first
obtain the permission of the Navy and a permit to enter from Alameda. The Parties anticipate
that the Navy will require a formal license agreement, addressing indemnification, insurance,
restoration of the Property, and hazardous materials, before permitting the Developer to enter
onto the Property. Alameda shall assist and cooperate with the Developer in obtaining such
permission and agreement from the Navy.
Section 21. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
Section 22. Entire Agreement. This Agreement contains the entire agreement of the Parties
regarding the Development. This Agreement may be modified only by written agreement signed
by the parties hereto.
First Amended ENA -14-
6 -20 -02
Section 23. Captions. Captions at the beginning of each section of this Agreement are for
reference only and shall in no way define or interpret any provision hereof.
Section 23. Construction. The provisions of this Agreement have been jointly drafted by the
Parties and shall be constructed as to the fair meaning and not for or against any Party based
upon any attribution of such Party as the sole source of the language in question.
Section 24. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the same
agreement.
Section 25. Work Product. If this Agreement is terminated without execution of a DDA for
any reason other than an Event of Default with respect to Developer, and if Alameda, in pursuing
development activities at the Site with a different developer, utilizes any work product developed
by or for the Developer (or paid for as a Pre - negotiating Cost) in connection with the Property,
then Alameda shall reimburse to the Developer the cost of such utilized work product out of any
disposition proceeds paid to Alameda.
IN WITNESS WHEREOF, the parties, who have had the opportunity to consult with
their attorneys with respect hereto and who fully and completely understand the terms and
provisions hereof, have executed this Agreement as of the date set opposite their signatures. The
effective date of this Agreement shall be the date the Agreement is signed by Alameda.
ALAMEDA REUSE AND
ALAMEDA COMMUNITY
REDEVELOPMENT AUTHORITY IMPROVEMENT COMMISSION
By: By:
Executive Director Executive Director
RE i P 1 . D :' 0 ' � ' PROVAL:
Art ANY
D. Llas Y. ` Douglas Y
Developme 'Services Director Development rvices Director
Date:
ROVAL:
eneral Counsel
First Amended ENA -15-
D AS TO FORM:
Ge "eral Counsel
6 -20 -02
CITY OF ALAMEDA
By:
City Manager
' E ' OR PROVAL:
Douglas o -
4
Developme ervices Director
APPR ED AS TO FORM:
ity Attorney
First Amended ENA
ALAMEDA POINT COMMUNITY
PARTNERS, LLC
By:
y Heckenlively
-16- 6 -20 -02
LIST OF EXHIBITS
Exhibit A - Map of the Site
Exhibit B - Approved Time Schedule
Exhibit C - Roles. and Responsibilities
Exhibit D - Alameda Pre - development Cost Budget
Exhibit E - Parties' Organizational Charts
First Amended ENA
-17- 6 -20 -02
First Amended ENA
EXHIBIT A
THE MAP OF THE SITE
-18- 6 -20 -02
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First Amended ENA
EXHIBIT B
APPROVED TIME SCHEDULE
-19- 6-20-02
EXHIBIT B
APPROVED TIME SCHEDULE
WORK PRODUCT DUE DATE
1. Services Funding Agreement 12/31/02
2. Predator Mgt. Agreement 12/31/02
3. Expedited Processing Agreement 01/31/03
4. Early Transfer Agreement / 01/31/06
Early Transfer Related Activities
5. Tidelands Trust Exchange Agreement 01/31/03
6. Master Plan 09/30/04
7. DDA Term Sheet 09/30/03
8. DDA 09/30/04
9. Development Agreement 09/30/04
First Amended ENA
EXHIBIT C
ROLES AND RESPONSIBILITIES
-20- 6 -20 -02
Exhibit C
Roles and Responsibilities
Lead Negotiator / Negotiating Team
• Negotiations /internal project oversight
• Coordinate project through to entitlements
• Direction to working groups/keeper of big picture
• Directly negotiate business terms
II. Working Groups
Working groups will provide the required technical support to the Negotiating Team. It
is anticipated that some working groups will start sooner than others and complete their
tasks earlier (i.e., Asset Management will begin right away and will be done within seven
months. The entitlement group may gear up more slowly, but be involved through
project approvals). Each working group will have a team leader (s) (one from the City
and one from APCP). Team leaders will be responsible for convening the working
groups; preparing agendas, meeting schedules, required background materials, etc.; and
coordinating with the Negotiating Team. Team leaders will work closely with the Project
Managers (Debbie Potter and Thom Gamble).
The following are working groups and the City team leaders:
A. Affordable /Special Needs Housing (Housing Development Manager)
• Identify affordable housing needs
• Ensure compliance with Settlement Agreement, Housing Element, etc.
• Coordinate funding sources /phasing
B. Early Transfer / Environmental Cleanup / Tidelands Trust (Debbie Potter)
• Negotiate with Navy / EPA/ DTSC
• Insurance
• Tidelands Trust swap
• Cleanup standards
H:�My Documentsl LucretiaWasterDeveioper \APCPTerson.Roles.doc
C. Asset Management (Ed Levine)
• Develop Property Management Agreement
• Negotiate Asset Management Agreement
• Short -term Infrastructure
• Research technical issues
D. Regulatory/Entitlement/ER (Jerry Cormack / Cynthia Eliason)
• Develop Master Plan
• Manage EIR
• Historic Preservation
+ Process General Plan Amendment/Zone changes, maps, subdivisions, etc.
• Long -term Infrastructure
E. Transportation [Matt Naclerio or designee)
• New Crossing / Overhead Tram
• Transit / Bike / Pedestrian Needs
• Circulation
F. Ad Hoc/Misc. (TBD)
• Predator Management MOA (Elizabeth Johnson)
• Negotiate MOA with developer/Navy/USF &W
+ Community Engagement (TBD)
• Identify community involvement process
❖ Ensure stakeholder participation
+ Oversee community board/committee
• Press Relations / Marketing (TBD)
+ Communicate City -wide regarding project (e.g. quarterly newsletter)
-2—
H:\My DocumentsEucretia\ Mast erDevcloperWPCP\Person.Roles.doc
EXHIBIT D
ALAMEDA PRE - DEVELOPMENT COST BUDGET
First Amended ENA -21-
6 -20 -02
EXHIBIT D
Cost Recovery
Development Services Staff
Base Reuse & Redevelopment Manager
Director, Development Services Department
Department Secretary, Base Reuse
Leasing Manager, Base Reuse
Manager, Finance & Administration
Management Analyst, Finance & Administratior
Time Allocation
0.75
0.4Q
0.30 _
0.20
0-.10
0.10
Other City Staff
Director, Public Work 0.20
Manager, Planning 0.10
Manager, Development. Review 0.10
Director, Recreation & Parks 0.05
Annual Total (Salary & Benefits) for Time Allocated $ 312,019
Consultant Services @ $125,000 per month 1,500,000
TOTAL for Cost Recovery $ 1,812,019
Cost Recovery 120401 1V14/2001
EXHIBIT E
PARTIES' ORGANIZATIONAL CHART
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EXHBIBIT F
MEMORANDUM OF UNDERSTANDING
REGARDING DETERMINATION CRITERIA FOR
EVALUATING REQUESTS BY APCP FOR CAPITAL INVESTMENT LEASES
MEMORANDUM OF UNDERSTANDING REGARDING
DETERMINATION CRITERIA FOR EVALUATING REQUESTS BY
APCP FOR CAPITAL INVESTMENT LEASES
The purpose for the development of the criteria set forth below is to agree upon the procedure and
evaluation process that the ARRA will adhere to in considering requests made by APCP under
Section 5.6 of the Alameda Point Exclusive Negotiation Agreement ( "ENA "), dated January 7, 2002,
entered into between City of Alameda, APCP and ARRA. The concepts which are addressed in such
Section 5.6 of the ENA were to be formalized and included in the "Asset Management Agreement ";
provided, however, the parties elected not to pursue such document. In substitution of such process, t- he
parties desire to and hereby agree to consider, on a case by case basis, APCP's requests concerning
Capital Investment Leases (as defined below) as provided herein.. In developing such criteria, ARRA and
APCP acknowledge that the expenditure of funds by APCP that benefit the redevelopment of Alameda
Point, as contemplated in the EDC and LIFOC, is of material importance to both APCP and ARRA. In
this regard and in general, requests made by APCP for usage of funds generated from new leasing
involving Capital Investment Leases will be broadly construed and presumably reasonable if such usage
is for the benefit of the redevelopment of Alameda Point, as contemplated. by the EDC and LIFOC.
Given this objective, ARRA and APCP agree that new lease and/or renewal proposals that are Capital
Investment Leases will be evaluated within the context of the following guiding criteria:
{i) ARRA recognizes that new leases and/or renewal situations may require APCP to fund
capital improvements in the property to be leased ( "Capital Investment Leases ").
(ii) ARRA recognizes that APCP needs to receive a sufficient portion of new lease and
renewal revenue generated by the Capital Investment Leases to reimburse APCP for its capital
investments and to fund future expenses for the redevelopment of Alameda Point mutually agreed upon
by APCP and ARRA.
(iii) ARRA and APCP recognize that 100% of lease revenues must be invested in Alameda
Point per the requirements of the EDC, LIFOC and related documentation entered into between the City
of Alameda and the Navy.
(iv) ARRA and APCP recognize that the lease revenue from existing leases must be
preserved and retained by ARRA through the end of FY 2003/2004.
(v) In recognition of APCP's expenditure of funds relating to the redevelopment of Alameda
Point, ARRA shall not unreasonably withhold consent to requests by APCP to receive lease revenue
generated by Capital Investment Leases for amounts necessary to reimburse APCP for (A) capital
expenditures for leasehold and beautification projects approved by ARRA, and (B) other future mutually
agreed upon expenses related to Alameda Point incurred or to be incurred by APCP or ARRA which are
for redevelopment purposes and consistent with the EDC/LIFOC purposes, such as but not limited to,
future project level Environmental Impact Reports, transportation or transit feasibility studies,
infrastructure planning or other planning studies necessary for the redevelopment of Alameda Point.
This memorandum of understanding is intended to supplement and provide interpretation to
Section 5.6 of the ENA and establish the agreement contained therein.
2000000.3870
CITY OF ALAMEDA
By:
rts: • City- Manager
Date:
RECO
Douglas
APPR AS TO FORM:
opulent Services Director
David Brandt
Assistant City Attorney
2000000.3870
ALAMEDA REUSE AND DEVELOPMENT
AUTHORITY
By:
Its: Executive Director
Date:
RECO 1 , • D `:R • ". *V,
II
/ . A MAN
Dougla f ount 17 0 0 a'nt Service' irector
APPRO AS TO FORM:
David Brandt
Assistant City Attorney
ALAMEDA COMMUNITY IMPROVEMENT
COMSSION
By:
Its
Executive Director
velopment Services Director
D AS TO FORM:
David Brandt
Assistant City Attorney
2000000.3870
ALAMEDA POINT COMMUNITY
PARTNERS, LLC, a Delaware limited
liability company
ALAMEDA POINT BEAUTIFICATION AGREEMENT/
ADDENDUM TO PROPERTY MANAGEMENT AGREEMENT
THIS ALAMEDA POINT BEAUTIFICATION AGREEMENT /ADDENDUM TO
PROPERTY MANAGEMENT AGREEMENT ( "Addendum ") is entered into this day of
, 2002 ( "Addendum Date "), by and between the ALAMEDA REUSE AND
REDEVELOPMENT AUTHORITY, a public entity lawfully created and existing under the
laws of the State of California ( "ARRA "), and ALAMEDA POINT COMMUNITY
PARTNERS, a Delaware Limited Liability Company (the "Developer "). ARRA and
Developer are collectively referred to as the "Parties."
RECITALS
A. Developer and ARRA have entered into a Property Management Agreement dated
as of May 1, 2002 ( "Management Agreement ") with respect to certain real property (the
"Site ") located within the boundaries of the Alameda Point Improvement Project ( "APIP ")
redevelopment area.
B. Developer, ARRA, the Alameda Community Improvement Commission, a
redevelopment agency (the "CIC "), and the City of Alameda, a municipal corporation (the
"City ") have entered into a First Amended Alameda Point Exclusive Negotiation Agreement
dated as of July 16, 2002 (the "ENA ").
C. Developer and ARRA desire Developer in its role as Manager under the
Management Agreement to implement certain beautification projects on the Site and to provide a
means for payment for the approved costs of such projects and have agreed to enter into this
Addendum supplementing the Management Agreement to provide a process for implementing
such beautification projects.
D. Except where otherwise expressly provided in this Addendum, the capitalized
terms used in this Addendum shall have the same definitions as in the Management Agreement.
In consideration of the mutual covenants contained herein, ARRA and Developer agree
as follows:
1. BEAUTIFICATION SITE PLAN.
1.1 Site Plan. Developer has prepared a site plan of anticipated areas of
beautification projects proposed by Developer, a copy of which is attached hereto as Exhibit A
( "Beautification Site Plan "). ARRA and Developer have agreed that the beautification projects
will be implemented on a project by project basis subject to the terms and conditions set forth in
this Addendum.
1.2 Conditions. As a condition precedent (for the benefit of both Developer
and ARRA) to Developer pursuing any beautification project pursuant to this Addendum, the
following criteria must be satisfied to the reasonable satisfaction of Developer: (i) each such
project shall be consistent with Developer's master planning for the Site; (ii) each such project
-1- 08/29/02
G: \Comdev \Base Reuse& Redevp \MasterDeveloper\Beautification Agreement\Beautification Agreement (Alameda).082902.doc
will not be required to be removed or destroyed in connection with Developer's installation and
construction of the base infrastructure within Alameda Point, (iii) each such project, to the extent
involving construction of improvements (such as monuments, entrances and signage), will be
done in a manner consistent with the overall theme for the future development of the Site;
(iv) each such project will not interfere with environmental restoration/remediation of the Site
through either a privatization and/or governmental process, (v) each such project will comply
with existing laws, statutes and ordinances, including without limitation documentation entered
into between ARRA and the Navy; (vi) each such project is supported by an adequate
reimbursement mechanism from ARRA to Developer in the event the ENA terminates or expires .
by its terms without the parties entering into the DDA for any reason other than a default by
Developer. (As of the date of this Addendum, ARRA is willing to accept, as determined in its
discretion, one of the following repayment methods: (i) repayment in cash within sixty (60) days
following the Termination Date; (ii) subject to mutual agreement of the Parties, repayment by
way of transfer of an asset by ARRA or the CIC to Developer; or (iii) repayment by a note in the
principal amount of the Initial Beautification Project Costs with interest at the rate of
Developer's cost of funds not to exceed the prime lending rate as announced by Wells Fargo
Bank per annum non - compounded from the Termination Date, payable, at ARRA's election
either (A) in annual installments over a period of five (5) years or (B) solely out of cash flow
from the Site available after payment of debt service and other committed non - discretionary
costs payable out of such cash flow as determined by ARRA, and in either (A) or (B), the first
payment to be due sixty (60) days following the Termination Date [the foregoing shall not
prevent Developer from submitting an alternative repayment method to ARRA for review], the
repayment method must be agreed to between Developer and ARRA prior to the commencement
of construction of each Beautification Project), and (vii) each such project is supported by an
adequate financial security device in favor of ARRA to insure payment of the cost of such
project) (the conditions set forth in Subsections (i) through (vii) above are collectively referred to
as the "Beautification Project Conditions "). To the extent applicable, Developer shall prepare
all documentation necessary to satisfy the Beautification Project Conditions, which
documentation shall be upon terms and conditions acceptable to ARRA, the approval of which
shall not be unreasonably withheld (the cost of satisfying the conditions set forth in this
Subsection (vii), shall be included in the cost clause (vi) above).
2. BEAUTIFICATION PROJECTS.
2.1 Implementation. Subject to satisfaction of the Beautification Project
Conditions, to implement a beautification project, Developer shall first prepare and submit
conceptual drawings for review by the Alameda Point Advisory Committee ( "APAC ") and, to
the extent within its jurisdiction, the Historical Advisory Board ( "HAB "). Following review by
HAB and APAC of the conceptual drawings, Developer shall submit the reviewed (revisions
made as appropriate based upon comments made by APAC and HAB) conceptual drawings to
ARRA for approval, together with an Initial Budget as set forth in Section 3.1 below. Following
approval by ARRA of the conceptual drawings, Developer shall prepare and submit final plans
and specifications for approval by ARRA, which shall be in substantial compliance with the
conceptual drawings previously approved.
2.2 Approvals and Permits. Developer shall be responsible for obtaining all
necessary approvals and permits, including without limitation, building permits from the City
and any approvals required by the Navy. To the extent that any beautification project will be
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constructed wholly or partially within a City right of way, it is anticipated that approval of the
City Council may be required.
2.3 Contracts. Developer shall enter into all contracts for the design and
construction of the Approved Beautification Projects (as defined in Section 3.2 below) in
Developer's name and not on behalf of ARRA. Subject to the provisions of this Addendum,
Developer shall be solely responsible for payments of any and all costs related to the Approved
Beautification Projects and shall keep the Site and all portions thereof free from liens arising out
of any work on such projects. Developer's indemnity obligations under the Management
Agreement shall extend to and include all work and other matters contemplated by this
Addendum.
3. BUDGET AND APPROVED BEAUTIFICATION PROJECT.
3.1 Approved Budget. Developer shall submit to ARRA an initial budget
( "Initial Budget ") for approval together with the submission of the conceptual drawings.
Developer shall submit a final budget to ARRA for approval, together with the submission of
final plans and specifications. The final budget approved by ARRA shall be the "Approved
Budget." Any changes to the Approved Budget which would (a) increase the total amount of
the Approved Budget, or (b) cause any line item to exceed the line item in the Approved Budget
by the lesser of (a) 10% of such line item or $5,000, shall be subject to further approval by
ARRA.
3.2 Approved Beautification Project. A beautification project for which final
plans and specifications have been approved by ARRA and that has an Approved Budget shall
be an "Approved Beautification Project." A description of each Approved Beautification
Project together with a list of final plans and specifications and a copy of the Approved Budget
shall be attached hereto as an Exhibit and incorporated herein following final ARRA approval.
3.3 Final Accounting. Within thirty (30) days following completion of an
Approved Beautification Project as evidenced by written acceptance by ARRA, issuance of a
certificate of completion by the City and acceptance by the Department of Public Works
( "DPW ") to the extent located within a City right -of -way, Developer shall deliver to ARRA an
accounting of the final costs of the Approved Beautification Project ( "Beautification Project
Costs "), including supporting invoices and other documentation, which shall be consistent with
the Approved Budget. ARRA and the City shall have the right at any time to examine and audit
all records for all Approved Beautification Projects in accordance with the provisions of
Section 6 of the Management Agreement.
4. FUNDING AND DDA
4.1 Payment by Developer. Developer shall pay the Beautification Project
Costs as shown in the Approved Budget from its own funds and not from funds collected under
the Management Agreement.
4.2 DDA Negotiations. Provided that the transaction described by the DDA is
completed, the Beautification Project Costs will be part of the economic negotiations set forth
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under such DDA. The Parties intend that the provisions of this Addendum will be superseded by
provisions set forth in the DDA, which result shall be specifically set forth in such document.
4.3 Failure of Transaction Described by DDA.
(a) If the ENA terminates or expires by its terms without the parties
entering into a DDA for any reason other than due to default by Developer (the "Termination
Date "), ARRA shall be obligated to reimburse Developer for the Beautification Project Costs in
the Approved Budget as set forth in Section 4.3(b) below. It shall be a condition of ARRA's
obligation to reimburse Developer that Developer has complied on a timely basis with its -
obligations set forth in Section 3 above.
(b) ARRA shall reimburse Developer in accordance with the
documentation entered into by ARRA and Developer which satisfied the condition precedent set
forth in clause (iv) of the Beautification Project Conditions, which document(s) are referred to as
the "Reimbursement Agreement(s)." The Reimbursement Agreement for each approved
Beautification Project must be entered into prior to commencement of construction of such
approved Beautification Agreement.
5. COMMENCEMENT AND COMPLETION.
5.1 Commencement. Provided all Beautification Project Conditions have
been satisfied, upon approval of the final plans and specifications and an Approved Budget by
ARRA, but in no event later than thirty (30) days after such approval, Developer shall commence
the Approved Beautification Project; provided that prior to commencing any work, Developer
shall submit to, and obtain approval of the City's Risk Manager, evidence of all insurance
required for construction under Sections 5.1 and 5.3 of the Management Agreement. Developer
will comply with all applicable laws for construction.
5.2 Completion. Developer shall thereafter diligently pursue completion of
the work and shall complete such work in a good and workmanlike manner. Within ten (10)
business days of completing the Approved Beautification Project, Developer shall notify ARRA
of completion. Developer shall maintain with its records of the Property as -built plans (which
may consist of the contractor's field changes marked on the final plans and specifications).
6. TERMINATION BY ARRA.
6.1 Termination With or Without Cause. ARRA shall have the right to
terminate this Addendum with or without cause by giving written notice to Developer at any
time prior to commencement of physical construction of an Approved Beautification Project on
the Site, which notice shall be effective immediately upon receipt by Developer of ARRA's
written notice unless another date is specified by ARRA in such notice. Subject to Section 4.3(b)
above, if ARRA terminates this Addendum without cause after ARRA has approved the
conceptual drawings for a particular beautification project, ARRA shall be obligated to
reimburse Developer the reasonable out of pocket costs paid to third party design consultants for
design costs for such beautification project, in no event to exceed the amounts shown in the
Approved Budget. If such termination is without fault, ARRA may elect, at its sole option, any
of the following means of reimbursing Developer for such costs as follows: (i) in cash within
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sixty (60) days following the Termination Date; (ii) subject to mutual agreement of the Parties,
transfer of an asset by ARRA or the CIC to Developer; or (iii) a note in the principal amount of
the Initial Beautification Project Costs with interest at the rate of Developer's cost of funds not to
exceed the prime lending rate as announced by Wells Fargo Bank per annum non - compounded
from the Termination Date, payable, at ARRA's election either (A) in annual installments over a
period of five (5) years, or (B) solely out of cash flow from the Site available after payment of
debt service and other committed non - discretionary costs payable out of such cash flow as
determined by ARRA, and in either (A) or (B), the first payment to be due sixty (60) days
following the Termination Date.
6.2 Right to Terminate on Termination of Management Agreement. ARRA
shall also have the right to terminate this Addendum in the event the Management Agreement is
terminated, and notwithstanding any other provision of the ENA, or the Management
Agreement, or the termination thereof, the obligations of ARRA to (i) reimburse Developer
pursuant to Section 4 for completed Approved Beautification Projects, or (ii) beautification
projects in progress pursuant to Section 6.1 above, shall survive; provided, however, if such
termination to any of the above - mentioned documents is due to the default of Developer,
ARRA's obligation to reimburse Developer as set forth in this Addendum shall terminate.
6.3 Plans and Specifications /Consultant Agreements. Upon any termination
of this Addendum, at ARRA's election, Developer shall deliver copies of the plans and
specifications to ARRA. As part of the submission of final plans and specifications to ARRA,
Developer shall submit consents from the architect and other design consultants in foiiii and
substance reasonably acceptable to ARRA in which the architect and other design consultants
agree that ARRA shall have the right to use the plans and specifications for the beautification
projects without payment of further compensation and that if ARRA elects, in its sole discretion,
the architect and other design consultants will continue to perform the obligations under their
contracts for the benefit of ARRA provided that ARRA shall be responsible for payment for
services performed after the date of ARRA's election to cause architect and /or other design
consultants to continue to perform.
7. MANAGEMENT AGREEMENT.
Developer is undertaking the beautification projects in its capacity as Manager under the
Management Agreement. Accordingly, subject to the provisions of this Addendum, the
Management Agreement shall apply and shall be incorporated herein by reference. In particular,
the following provisions are specifically agreed to apply: Sections 1.2; 2.2 (f)(g)and(h); 4; 5.1
and 5.3 (Insurance); 6.1 and 6.2; 9.4, 10 -25 (inclusive). Notwithstanding the foregoing,
Developer shall not be entitled to any fee for the beautification projects. Because the costs of the
beautification projects contemplated by this Addendum will be paid by Developer, Developer
shall not be required to comply with Section 3 of the Management Agreement (Approval of
Contracts) but Developer shall obtain and submit competitive bids for the construction costs of
any Approved Beautification Project together with Developer's recommendations for selection
for review by ARRA. The provisions of the Member Certification of Obligations, which relates
to the Management Agreement executed by the members of APCP in favor of ARRA, shall not
apply to any of the provisions of this Addendum.
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IN WITNESS WHEREOF, the undersigned have executed this Addendum as of the date
first set forth above.
2000000.4319
ARRA:
ALAMEDA REUSE AND
REDEVELOPMENT AUTHORITY
Bv:
Date:
Executive Director
RECO " END 1 FIR APPROVAL:
,, dog
/ -Vii,, -dam
Dougla, s ou
Developme y ervices Director
APPROVED AS TO FORM:
eneral Counse
DEVELOPER:
ALAMEDA POINT COMMUNITY
PARTNERS, LLC, a Delaware limited
liability company
By
Title: zni
Date:
-6-
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