2004-02-04 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
Wednesday, February 4, 2004
Meeting will begin at 5:30 p.m.
City Hall will open at 5:15 p.m.
1. ROLL CALL
2. CONSENT CALENDAR
2 -A. Approval of the minutes of the special meeting of November 19, 2003.
2 -B. Approval of the minutes of the special joint City Council, CIC and ARRA meeting of
November 19, 2003.
3. REGULAR AGENDA ITEMS
3 -A. Recommendation from the Executive Director that the ARRA Governing Body Authorize
the Executive Director to Approve an Amendment Extending the term of the Agreement
with Barnes and Company for Two Months, in the Amount of $49,920 for Interim Project
Management Advisory Services for Alameda Point.
3 -B. Recommendation from the Executive Director that the ARRA Governing Body Authorize
the Executive Director to Approve an Amendment Adding $176,000 and Extending the
Term of the Agreement with the Ferguson Group for Policy Consultation and
Governmental Relations Services for Alameda Point.
3 -C. Recommendation from the Executive Director to Approve the Property Management
Agreement with PM Realty Group.
4. PRESENTATIONS
4 -A. Presentation regarding the Restoration Advisory Board (RAB).
ARRA Agenda — February 4, 2004
5. ORAL REPORTS
5 -A. Oral report from APAC.
5 -B. Oral report from the Executive Director (non- discussion items).
Page 2
6. 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.)
7. COMMUNICATIONS FROM THE GOVERNING BODY
8. ADJOURNMENT TO CLOSED SESSION OF THE ARRA TO CONSIDER
CONFERENCE WITH REAL PROPERTY NEGOTIATOR:
8 -A. Property:
Negotiating parties:
Under negotiation:
8 -B. Property:
Negotiating parties:
Under negotiation:
Alameda Naval Air Station
ARRA and Navy
Price and Teuus
Alameda Naval Air Station
ARRA, Navy, and Alameda Point Community Partners
Price and Terms
Announcement of Action Taken in Closed Session, if any.
9. ADJOURNMENT
This meeting will be cablecast live on channel 15. The next regular ARRA meeting is
scheduled for Wednesday, March 3, 2004.
Notes:
• Sign language interpreters will be available on request. Please contact the ARRA Secretary, Emily Parodi
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.
UNAPPROVED
MINUTES OF THE SPECIAL MEETING OF THE
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY
Wednesday, November 19, 2003
The meeting convened at 6:46 p.m. with Mayor Johnson presiding.
1. ROLL CALL
Present: Beverly Johnson, Mayor, City of Alameda
Tony Daysog, Boardmember, City of Alameda
Barbara Kerr, Boardmember, City of Alameda
Frank Matarrese, Boardmember, City of Alameda
Marie Gilmore, Boardmember, City of Alameda
2. PUBLIC COMMENT ON AGENDA ITEMS ONLY
None.
3. REGULAR AGENDA ITEM
2 -A
3 -A. Recommendation from the Executive Director that the ARRA Governing Body
authorize the Executive Director to execute an amendment to a contract with Holland
& Knight, LLP.
Member Kerr asked for clarification that this is a one -month extension of the contract. The City
Manager confirmed this information. She then requested that if it comes before the Board
another time, a progress report be provided on accomplishments to date. The City Manager
stated that a written update would be provided shortly to all Board members.
Member Matarrese moved to authorize the Executive Director to execute an amendment to
a contract with Holland & Knight. Member Daysog seconded the motion. The motion
passed unanimously.
3 -B. Recommendation from the Executive Director that the ARRA Governing Body
authorize the Executive Director to execute an amendment to a contract with RBF
Consulting.
The City Manager indicated that the work is almost finished and will conclude with this
amendment to the contract. The contract exceeded its original amount by $19,000 due to a
change in scope of work as requested by staff.
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Member Daysog moved to authorize the Executive Director to execute an amendment to a
contract with RBF Consulting. Member Kerr seconded the motion. The motion passed
unanimously.
ADJOURNMENT
Mayor Johnson adjourned the meeting at 7:00 p.m.
Respectfully submitted,
EmiCy Parodi
Interim ARRA Secretary
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UNAPPROVED
MINUTES OF THE SPECIAL JOINT MEETING OF THE
CITY COUNCIL, COMMUNITY IMPROVEMENT COMMISSION,
AND ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY
Wednesday, November 19, 2003
The meeting convened at 5:00 p.m. with Mayor Johnson presiding.
ROLL CALL
Present: Beverly Johnson, Mayor, City of Alameda
Tony Daysog, Boardmember, City of Alameda
Barbara Kerr, Boardmember, City of Alameda
Frank Matarrese, Boardmember, City of Alameda
Marie Gilmore, Boardmember, City of Alameda
1. PUBLIC COMMENT ON AGENDA ITEMS ONLY
Peter Clark, a transit - oriented developer, proposes to build a transit system of automated trolleys
at Alameda Point connecting to BART at no cost to the City of Alameda in exchange for 40 acres
of land. All construction is pre -fab with no broken ground. He has been involved in other such
trolley systems around the country that have perfect safety records. He requested permission to
talk to staff about his proposal.
Doug deHaan stated that there is not much public evidence of progress at Alameda Point by the
master developer, although it has been almost two years. Three of the key companies that were
originally in the APCP partnership are no longer involved and two companies have replaced
them, which significantly changes the proposal that was approved. He feels it is important that
the remediation portion of the development process be completed as a whole and not piece meal.
2. PRESENTATION BY ALAMEDA POINT COMMUNITY PARTNERS
Aiden Barry, property manager for APCP, provided written responses to the Board's questions
from a meeting held the previous week. His presentation outlining these responses is
summarized below.
APCP is comprised of Shea Homes, Centex Homes, Shea Properties, Morgan Stanley Real Estate
Fund, and Industrial Realty Group (IRG). As of October 1, 2003, an amendment to the MOU
created two operating groups: the Shea and Centex entities are the operating members, and the
real estate partners are the passive members. The operating members will oversee all activities
and fund current development. The passive members will have no control over day -to -day
operations but have a financial interest. Updated financial information has recently been
provided to the City that demonstrates sufficient funding to complete the project.
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Mr. Barry introduced Lori Fhelberg, who provided an overview of the entire project. She noted
the constraints of existing buildings and infrastructure, as well as Measure A. Her presentation
outlined the Village Center, including retail, marina, public facilities, and transit hub.
Highlighting the adaptive reuse area is Hangar Row, which may be useful for alternative energy
resources on the rooftops as well as interior tenants. Innovative transit ideas, including the
gondola crossing, are being researched. There will be a pedestrian - friendly, neighborhood
atmosphere, including a series of parks and paths. Housing areas will not be tracts of the same
designs but different configurations with varied sizes and price ranges.
Bob Burke, general manager of Shea Properties, introduced the specialists on the team. Sam
Swan of Cushman & Wakefield discussed their projects at Marina Village and Harbor Bay and
their adaptive reuse experience in Oakland, Emeryville and Berkeley. They anticipate working
with current tenants as well as attracting new tenants as development progresses. David Johnson
with Studios Architecture in San Francisco discussed their reuse projects, including a series of
hangars at Hamilton Field and the Ferry Building in San Francisco.
Aiden Barry also discussed the risk problems in developing the project, including the physical,
financial, and remediation constraints. They are anticipating an internal rate of return (IRR) of
22.5 %, which is subordinate to the City's goals. They are two to three years away from actually
starting the redevelopment of the project. Mr. Barry provided a brief summary of the background
of the master developer selection process, negotiations with the City, and progress to date,
including the draft Conditional Acquisition Agreement (CAA). He said it is time to put forth a
joint effort between APCP and the City to negotiate with the Navy on the conveyance strategy
that will allow the property to be transferred on a phased basis.
Member Gilmore asked about the IRR of 22.5% as it relates to the $3.5 million that the City put
forth to fund some of the pre - development costs. Phil Rafton, part of the financial team,
delineated the risks going forward (after final negotiations with the Navy), including entitlement,
traffic issues, development costs that are impacted by unknown conditions including soil and
seismic considerations, and market risks. Also, APCP was supposed to receive lease revenue
from MARAD but that was subsequently changed. Therefore, their risk remains the same even
with the City's contribution, which is in the foam of bonds.
Member Kerr stated that there is also risk involved for the City via the issuance of the bonds,
which have to be paid back. Also, all developers are faced with traffic and seismic problems.
She is concerned about building a 22.5% IRR into the CAA because a land price has not been
settled, and the City could end up with no return for the land. She also feels the City should have
considered another alternative, namely trying to sell the land as -is.
Chair Johnson pointed out that the $3.5 million would have to be spent regardless of how or by
whom the property is developed. It is necessary for the City to gain entitlement from the Navy.
Member Daysog expressed concerns about the issuance of the bonds and how it relates to the
portion of the CAA on fiscal neutrality. He would like language added to the CAA that not only
contemplates issuance of bonds but also budget cuts. Mr. Rafton indicated that discussions are
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ongoing with staff regarding the issuance of bonds but nothing has been finalized. Lease
revenues and not general obligations of the City will secure the bonds, so APCP is also
responsible for their repayment.
Member Gilmore pointed out that the City could spend $3.5 million on the preliminary phases
and then APCP could decide to walk away from the project. Mr. Rafton responded that APCP
will also be spending approximately $1.8 million during the same time. He also indicated that
the $7 million spent thus far plus this $1.8 million is not generating 22.5% IRR.
Member Kerr asked what type of accounting the City will receive on the $1.8 million. Mr.
Rafton said that there will be an audit process completed on monies spent to date and another at
the conclusion of the ARRA - funded pre - development period. Ms. Kerr also inquired if there is
any contractual obligation between the "specialty team" companies introduced this evening and
APCP. Mr. Barry responded that Shea Properties created an RFQ for a group called Alameda
Point Adaptive Reuse (APAR) — an entity in name only for the RFQ. This group will aid APCP
in the adaptive reuse portion of the CAA. He also confirmed APCP's intent to be totally in sync
with the City in negotiations with the Navy on all levels (local as well as Washington).
Lane Marceau, president of Shea Homes, further addressed Ms. Gilmore's concerns about
APCP's walk -away option. He reiterated that they have spent $7 million thus far and taken on
that entire risk with no vested rights to the property.
Member Gilmore asked if any of the APAR members of APCP have any experience with military
bases that are further along in their development than Alameda Point. Mr. Barry noted that IRG
has worked on McClellan Park, which is a little further along. Mr. Burke said that they have
worked on some parts of Hamilton Field and Tustin but not in advanced stages. They have,
however, done adaptive reuse work in similar large buildings on civilian sites since the 1970's.
Ms. Gilmore also asked about the original MOU versus the amended MOU. In the original
MOU, there was an IRR of 18% with incentives if certain goals are met. The amended MOU
indicates that any area not addressed remains the same as the original. Mr. Barry indicated they
are in the process of drafting an Operating Agreement, which will detail each of the components
in the MOU. Mr. Marceau also clarified that there is a section in the amended MOU that
supersedes all previous sections regarding cash distribution, so the 18% IRR no longer exists.
Member Kerr asked about APCP'S status as a Delaware corporation and its ability to obtain
insurance, which had been a problem originally. Mr. Barry stated that the insurance requirements
in the Property Management Agreement were somewhat unique, but the corporation has been
able to satisfy them and is fully insured.
3. ADJOURNMENT TO CLOSED SESSION
CONFERENCE WITH REAL PROPERTY NEGOTIATOR
Property: Alameda Naval Air Station
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Negotiation Party:
Alameda Point Community Partners; Navy; City of
Alameda; Community Improvement Commission;
and Alameda Reuse and Redevelopment Authority
Under Negotiation: Price and terms.
Mayor Johnson reconvened the public portion of the meeting. She announced that the ARRA,
City Council, and CIC met in closed session with the real property negotiators.
4. ADOPTION OF RESOLUTION AUTHORIZING THE ALAMEDA CITY
MANAGER, EXECUTIVE DIRECTOR OF THE COMMISSION AND THE
EXECUTIVE DIRECTOR OF THE AUTHORITY TO ENTER INTO A
CONDITIONAL ACQUISITION AGREEMENT BY AND BETWEEN THE
ALAMEDA POINT COMMUNITY PARTNERS FOR REAL PROPERTY AT
ALAMEDA POINT
Member Gilmore thanked APCP for all of the information submitted in writing and verbally at
the meeting. Member Daysog acknowledged that sufficient data has been submitted and a
decision needs to be made in order to move forward with the development plans.
Member Daysog moved for the adoption of the Conditional Acquisition Agreement, with
the notes so tailored, with an understanding that in performing its responsibilities, the
ARRA, City Council, and CIC shall contemplate reducing capital budgets in an effort to
achieve fiscal neutrality.
Member Matarrese seconded the motion with the additional policy statement and with the
language as annotated, noting that this is a conditional agreement and it lays out terms to
forward in understanding that the $3.5 million investment the City is going to make over
the next 15 months is something that is needed to continue the quest to develop the
property regardless of who is in the position of master developer or individual developer.
Member Gilmore expressed a desire to have time to digest what was presented at this. meeting
rather than act at this time, especially since this was the first time the individual entities were
introduced.
Member Gilmore moved for a continuance of the item for another one or two weeks in
order to further review all of the material presented. Member Kerr seconded the motion.
Member Daysog stated that he has had an opportunity to review the CAA and review the
materials for many months and feels comfortable moving ahead at this time.
Member Gilmore's motion failed by the following voice vote: Mayor Johnson: No;
Member Daysog: No; Member Kerr: Aye; Member Matarrese: No; Member Gilmore:
Aye.
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Member Daysog's motion passed by the following voice vote: Mayor Johnson: Aye;
Member Daysog: Aye; Member Kerr: No; Member Matarrese: Aye; Member Gilmore:
No.
ADJOURNMENT
Mayor Johnson adjourned the meeting at 6:45 p.m.
Respectfully submitted,
Emily Parodi
Interim ARRA Secretary
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Alameda Reuse and Redevelopment Authority
Interoffice Memorandum
January 20, 2004
TO: Honorable Chair and Members of the
Alameda Reuse and Redevelopment Authority
FROM: James M. Flint
Executive Director
3 -A
SUBJ: Recommendation from the Executive Director that the ARRA Governing
Body Authorize the Executive Director to Approve an Amendment
Extending the Term of the Agreement with Barnes and Company for Two
Months, in the Amount of $49,920 for Interim Project Management
Advisory Services for Alameda Point
Background
On November 13, 2003, Barnes and Company entered into an agreement with ARRA to
provide advisory services and serve as interim Project Manager to the Alameda Point
Project.
Discussion
The Agreement with Barnes and Company commenced on November 13, 2003 and will
terminate on February 13, 2004. The Agreement provides that Barnes and Company will
be paid $24,000 per month prior to January 1, 2004, and $24,960 a month following
January 1 to provide project management services. Therefore, the contract amount for the
term November 13, 2003 through February 13, 2004 totals $73,440.
The attached amendment provides for a two month extension through April 16, 2004.
The amended contract amount will not exceed $123, 360 ($73, 440 for the existing term
plus $49,920 for the extended term). Based on the current status of project negotiations
and the schedule for recruiting a full -time project manager, this contract requires an
amendment to continue the advisory services currently being provided. The attached
consultant agreement includes the scope of services, which will continue to be performed
by the consultant, as directed by the ARRA.
Dedicated to Excellence, Committed to Services
Honorable Chair and Members of the
Alameda Reuse and Redevelopment Authority
Fiscal Impact
January 20, 2004
Page 2
The funding source for these consultant costs during the amended two month term, in the
amount of $49,920, is the Alameda Point Refunding Bond 2003 (for predevelopment).
Therefore, there is no fiscal impact to the general fund.
Recommendation
The Executive Director recommends that the ARRA Governing Board approve the
porposed Amendment to Agreement with Barnes and Company extending the term of the
Agreement for two months through April 16, 2004, in the amount not to exceed $49,920
for the extended term.
JF/PB/IF
Respectfully submitted,
91 �
1 Benoit
Deputy Executive Director
Attachments: Consultant Agreement — Barnes and Company
Amendment to Agreement — Barnes and Company
Dedicated to Excellence, Committed to Services
G: \Cotnlev\AP Project Manager \Barnes & Co.StaffReport.Contract Amendment. I- 20- 04.DOC
AMENDMENT TO AGREEMENT
This Amendment of the Agreement, entered into this llth day of February 2004, by and between
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY (hereinafter referred to as "ARRA ") and
William A. Barnes, a sole proprietor, DBA Barnes and Company, whose address is 650 Delancey Street
#204, San Francisco, CA 94107, (hereinafter referred to as "Consultant "), is made with reference to the
following:
RECITALS:
A. On November 13, 2003, an agreement was entered into by and between ARRA and
Consultant (hereinafter "Agreement ").
B. ARRA and Consultant desire to modify the Agreement on the terns and conditions set forth
herein.
NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as follows:
1. Paragraph 1 ( "Term ") of the Agreement is modified to read as follows:
"The temiil of this Agreement shall commence on the 13th day of November 2003, and shall terminate
on the 16th day of April 2004, unless terminated earlier as set forth herein."
2. Except as expressly modified herein, all other terms and covenants set forth in the Agreement shall
remain the same and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this modification of Agreement to be
executed on the day and year first above written.
CONSULTANT ALAMEDA REUSE &
Barnes and Company REDEVELOPMENT AUTHORITY
By: William A. Barnes
Date:
�,...,.��,2oo`t
James M. Flint
City Manager
Date:
RECOMMENDED FOR APPROVAL:
_Jr
P,ul Benoit I �.
evelopment Services Director
Date: ( , ^,�
APPROVED AS TO FORM:
f 7- David Brandt
T Assistant City Attorney
g: \comdev \contract \arra \barnes\amend.doc
CONSULTANT AGREEMENT
THIS AGREEMENT, entered into this 13th day of November, 2003, by and between
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY (hereinafter referred to as
"ARRA "), and William A. Barnes, a sole proprietor, DBA Barnes and Company, whose
address is 650 Delancey Street #204, San Francisco, CA 94107 (hereinafter referred to as
"Consultant "), is made with reference to the following:
RECITALS:
A. ARRA is a Joint Powers Authority duly organized and validly existing under the
laws of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the City.
B. Consultant is specially trained, experienced and competent to perform the special
services which will be required by this Agreement; and
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement on the terms and conditions
described herein.
D. ARRA and Consultant desire to enter into an agreement for professional advisory
services that will assist the ARRA in implementing new programs agreed to with Alameda
Point Community Partners upon the terms and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM:
The term of this Agreement shall commence on the 13th day of November, 2003, and
shall terminate on the 13`h of February, 2004, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit "A" which is
attached hereto and incorporated herein by this reference. All of the terms in Exhibit A are
fully agreed to by the parties and incorporated herein.
3. COMPENSATION TO CONSULTANT:
Consultant shall be compensated for services performed pursuant to this Agreement in
the amount set forth in Exhibit "A" which is attached hereto and incorporated herein by this
reference. Payment shall be made by checks drawn on the treasury of the ARRA.
Payment will be made by the ARRA in the following manner: On the first day of each
month, Consultant shall submit a written estimate of the total amount of work done the
previous month.
4. TIME IS OF THE ESSENCE:
Consultant and ARRA agree that time is of the essence regarding the performance of
this Agreement.
5. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner commensurate with the
prevailing standards of like professionals in the San Francisco Bay Area and agrees that all
services shall be performed by qualified and experienced personnel who are not employed by
the ARRA nor have any contractual relationship with ARRA.
6. INDEPENDENT PARTIES:
ARRA and Consultant intend that the relationship between them created by this
Agreement is that of employer - independent contractor. The manner and means of
conducting the work are under the control of Consultant, except to the extent they are limited
by statute, rule or regulation and the express terms of this Agreement. No civil service status
or other right of employment will be acquired by virtue of Consultant's services. None of the
benefits provided by ARRA to its employees, including but not limited to, unemployment
insurance, workers' compensation plans, vacation and sick leave are available from ARRA to
Consultant, its employees or agents. Deductions shall not be made for any state or federal
taxes, FICA payments, PERS payments, or other purposes normally associated with an
employer - employee relationship from any fees due Consultant. Payments of the above items,
if required, are the responsibility of Consultant.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Consultant assumes any and all responsibility for verifying the identity and employment
authorization of all of his/her employees performing work hereunder, pursuant to all
applicable IRCA or other federal, or state rules and regulations. Consultant shall indemnify
and hold City and ARRA harmless from and against any loss, damage, liability, costs or
expenses arising from any noncompliance of this provision by Consultant.
8. NON - DISCRIMINATION:
Consistent with ARRA's policy that harassment and discrimination are unacceptable
employer /employee conduct, Consultant agrees that harassment or discrimination directed
toward a job applicant, a ARRA employee, or a citizen by Consultant or Consultant's
employee or subcontractor on the basis of race, religious creed, color, national origin,
ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation will
not be tolerated. Consultant agrees that any and all violations of this provision shall
constitute a material breach of this Agreement.
9. INDEMNIFICATION:
Consultant shall indemnify, defend, and hold harmless ARRA, City,.its City Council,
boards, commissions, officials, and employees ( "Indemnitees ") from and against any and all
loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable
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attorneys' fees ( "Claims "), arising from or in any manner connected to Consultant's negligent
act or omission, whether alleged or actual, regarding performance of services or work
conducted or performed pursuant to this Agreement other than professional services which
are addressed below (professional liability.) If Claims are filed against Indemnitees which
allege negligence on behalf of the Consultant, Consultant shall . have no right of
reimbursement against Indemnitees for the costs of defense even if negligence is not found
on the part of Consultant. However, Consultant shall not be obligated to indemnify
Indemnitees from Claims arising from the sole or active negligence or willful misconduct of
Indemnitees.
Indemnification for Claims for Professional Liability:
As to Claims for professional liability only, Consultant's obligation to defend or
indemnify Indemnitees (as set forth above) is limited to the extent to which its professional
liability insurance policy will provide such defense costs and indemnification. Further,
ARRA will indemnify, defend, and hold harmless Consultant on all matters pertaining to
professional liability beyond the extent of Consultant's professional liability coverages
except in cases of gross negligence or willful misconduct.
10. INSURANCE:
Consultant has furnished ARRA with certificates showing the type, amount, class of
operations covered, effective dates and dates of expiration of insurance coverage in
compliance with paragraphs 10A, B, C, D and E. Such certificates, which do not limit
Consultant's indemnification, shall also contain substantially the following statement:
"Should any of the above insurance covered by this certificate be canceled or coverage
reduced before the expiration date thereof, the insurer affording coverage shall provide thirty
(30) days' advance written notice to the ARRA by certified mail, Attention: Risk Manager."
It is agreed that Consultant shall maintain in force at all times during the performance of this
Agreement all appropriate coverage of insurance required by this Agreement with an
insurance company that is acceptable to ARRA and licensed to do insurance business in the
State of California. Endorsements naming the City and ARRA as additional insured have
been submitted with the insurance certificates.
A. COVERAGE:
Consultant shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage in the following minimum limits:
Bodily Injury: $500,000
each occurrence
$1,000,000
aggregate -all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate limits in the amounts of
$1,000,000 will be considered equivalent to the required minimum limits shown above.
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(3) Automotive:
Comprehensive automotive liability coverage in the following minimum limits:
Bodily Injury: $500,000 each occurrence
Property Damage: $100,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
(4) Professional Liability:
Professional liability insurance which includes coverage for the professional acts, errors
and omissions of Consultant in the amount of at least $1,000,000.
B. SUBROGATION WAIVER:
Consultant agrees that in the event of loss due to any of the perils for which he /she has
agreed to provide comprehensive general and automotive liability insurance, Consultant shall
look solely to his/her insurance for recovery. Consultant hereby grants to ARRA, on behalf
of any insurer providing comprehensive general and automotive liability insurance to either
Consultant or ARRA with respect to the services of Consultant herein, a waiver of any right
to subrogation which any such insurer of said Consultant may acquire against ARRA by
virtue of the payment of any loss under such insurance.
C. FAILURE TO SECURE:
If Consultant at any time during the Willi hereof should fail to secure or maintain the
foregoing insurance, ARRA shall be permitted to obtain such insurance in the Consultant's
name or as an agent of the Consultant and shall be compensated by the Consultant for the
costs of the insurance premiums at the maximum rate pei uiitted by law and computed from
the date written notice is received that the premiums have not been paid.
D. ADDITIONAL INSURED:
ARRA, City, its City Council, boards and commissions, officers, and employees shall be
named as an additional insured under all insurance coverages, except any professional
liability insurance, required by this Agreement. The naming, of an additional insured shall
not affect any recovery to which such additional insured would be entitled under this policy if
not named as such additional insured. An additional insured named herein shall not be held
liable for any premium, deductible portion of any loss, or expense of any nature on this
policy or any extension thereof. Any other insurance held by an additional insured shall not
be required to contribute anything toward any loss or expense covered by the insurance
provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by ARRA are not represented as being sufficient to protect
Consultant. Consultant is advised to confer with Consultant's insurance broker to determine
adequate coverage for Consultant.
11. CONFLICT OF INTEREST:
Consultant warrants that it is not a conflict of interest for Consultant to perform the
services required by this Agreement. Consultant may be required to fill out a conflict of
interest form if the services provided under this Agreement require Consultant to make
certain governmental decisions or serve in a staff capacity as defined in Title 2, Division 6,
Section 18700 of the California Code of Regulations.
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12. PROHIBITION AGAINST TRANSFERS:
Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any
interest therein, directly or indirectly, by operation of law or otherwise, without prior written
consent of ARRA. Any attempt to do so without said consent shall be null and void, and any
assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of
such attempted assignment, hypothecation or transfer. However, claims for money by
Consultant from ARRA under this Agreement may be assigned to a bank, trust company or
other financial institution without prior written consent. Written notice of such assignment
shall be promptly furnished to ARRA by Consultant.
The sale, assignment, transfer or other disposition of any of the issued and outstanding
capital stock of Consultant, or of the interest of any general partner or joint venturer or
syndicate member or cotenant, if Consultant is a partnership or joint venture or syndicate or
cotenancy, which shall result in changing the control of Consultant, shall be construed as an
assignment of this Agreement. Control means fifty percent (50%) or more of the voting
power of the corporation.
13. SUBCONTRACTOR APPROVAL:
Unless prior written consent from ARRA is obtained, only those people and
subcontractors whose names and resumes are attached to this Agreement shall be used in the
performance of this Agreement.
In the event that Consultant employs subcontractors, such subcontractors shall be
required to furnish proof of workers' compensation insurance and shall also be required to
carry general, automobile and professional liability insurance in reasonable conformity to the
insurance carried by Consultant. In addition, any work or services subcontracted hereunder
shall be subject to each provision of this Agreement.
14. PERMITS AND LICENSES:
Consultant, at his /her sole expense, shall obtain and maintain during the term of this
Agreement, all appropriate permits, certificates and licenses including, but not limited to, a
City Business License, that may be required in connection with the performance of services
hereunder.
15. REPORTS:
A. Each and, every report, draft, work product, map, record and other document,
hereinafter .collectively referred to as "Report", reproduced, prepared or caused to be
prepared by Consultant pursuant to or in connection with this Agreement, shall be the
exclusive property of ARRA. Consultant shall not copyright any Report required by this
Agreement and shall execute appropriate documents to assign to ARRA the copyright to
Reports created pursuant to this Agreement. Any Report, information and data acquired or
required by this Agreement shall become the property of ARRA, and all publication rights
are reserved to ARRA.
B. All Reports prepared by Consultant may be used by ARRA in execution or
implementation of:
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(1) The original Project for which Consultant was hired;
(2) Completion of the original Project by others;
(3) Subsequent additions to the original project; and/or
(4) Other ARRA projects as appropriate.
C. Consultant shall, at such time and in such form as ARRA may require, furnish reports
concerning the status of services required under this Agreement.
D. All Reports required to be provided by this Agreement shall be printed on recycled
paper. All Reports shall be copied on both sides of the paper except for one original, which
shall be single sided.
E. No Report, information or other data given to or prepared or assembled by Consultant
pursuant to this Agreement shall be made available to any individual or organization by
Consultant without prior approval by ARRA.
16. RECORDS:
Consultant shall maintain complete and accurate records with respect to sales, costs,
expenses, receipts and other such information required by ARRA that relate to the
performance of services under this Agreement.
Consultant shall maintain adequate records of services provided in sufficient detail to
permit an evaluation of services. All such records shall be maintained in accordance with
generally accepted accounting principles and shall be clearly identified and readily
accessible. Consultant shall provide free access to such books and records to the
representatives of ARRA or its designees at all proper times, and gives ARRA the right to
examine and audit same, and to make transcripts therefrom as necessary, and to allow
inspection of all work, data, documents, proceedings and activities related to this Agreement.
Such records, together with supporting documents, shall be kept separate from other
documents and records and shall be maintained for a period of three (3) years after receipt of
final payment.
If supplemental examination or audit of the records is necessary due to concerns raised
by ARRA's preliminary examination or audit of records, and the ARRA's supplemental
examination or audit of the records discloses a failure to adhere to appropriate internal
financial controls, or other breach of contract or failure to act in good faith, then Consultant
shall reimburse ARRA for all reasonable costs and expenses associated with the
supplemental examination or audit.
17. NOTICES:
All notices, demands, requests or approvals to be given under this Agreement shall be
given in writing and conclusively shall be deemed served when delivered personally or on
the second business day after the deposit thereof in the United States Mail, postage prepaid,
registered or certified, addressed as hereinafter provided.
All notices, demands, requests, or approvals from Consultant to ARRA shall be
addressed to ARRA at:
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Alameda Reuse and Redevelopment Authority
Alameda Point, 950 West Mall Square, 2nd Floor
Alameda CA 94501
Attention: Paul Benoit
All notices, demands, requests, or approvals from City to Consultant shall be addressed
to Consultant at:
Barnes and Company
650 Delancey Street, #204
San Francisco, CA 94107
Attention: Andy Barnes
18. TERMINATION:
Neither party may terminate this Contract before January 1, 2004. Consultant is
committed to providing services until January 1 and ARRA is committed to paying for
those services at the rate set forth in Exhibit A under "Compensation." After January 1,
2004, either party may terminate this contract on 30 days prior written notice. In the
event that either party terminates after January 1, Consultant is committed to providing
services during that 30 day time period and ARRA is committed to paying for those
services during that time period as set forth in Exhibit A under "Compensation."
Unless extended by the parties in writing, or unless terminated by the parties as set
forth above, this contract shall terminate on February 13th, 2004.
19. "COMPLIANCES:
Consultant shall comply with all state or federal laws and all ordinances, rules and
regulations enacted or issued by City.
20. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State of
California excepting any choice of law rules which may direct the application of laws of
another jurisdiction. The Agreement and obligations of the parties are subject to all valid
laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement
(or the successors of those authorities.)
Any suits brought pursuant to this Agreement shall be filed with the courts of the
County of Alameda, State of California.
21. ADVERTISEMENT:
Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any
signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the
services performed under this Agreement unless prior written approval has been secured
from ARRA to do otherwise.
22. WAIVER:
A waiver by ARRA of any breach of any term, covenant, or condition contained herein
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shall not be deemed to be a waiver of any subsequent breach of the same or any other term,
covenant, or condition contained herein, whether of the same or a different character.
23. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall
be held to vary the provisions hereof. Any modification of this Agreement will be effective
only by written execution signed by both ARRA and Consultant.
24. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the Agreement shall be
deemed to be enacted herein, and the Agreement shall be read and enforced as though each
were included herein. If through mistake or otherwise, any such provision is not inserted or
is not correctly inserted, the Agreement shall be amended to make such insertion on
application by either party.
25. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the
Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the
day and year first above written.
CONSULTANT
Barnes and Company REDEVELOPM T A HORITY
ALAMEDA REUSE &
By: William A. Barnes
By: J. es M. Flint
Title: City Manager
RECOMMENDED FOR APPROVAL:
By: Paul B- oit
Title: Development Services Director
APPROVED AS TO FORM:
By: David Brandt
Title: Assistant City Attorney
8
Exhibit A-- -SCOPE OF WORK
The Request for Service:
The City of Alameda, through its Redevelopment Agency, has asked for professional
assistance in receiving interim project management advisory services for its Alameda
Point project during the time between the departure of its former manager and selection
of a new permanent project manager. William A. Barnes, operating under an existing
contract with Alameda has been asked to submit a proposal to provide these additional
services with the understanding that the likely period of such services will extend 2.5 or 3
months, after which a new permanent manager is expected to be in place. This contract
covers those additional services and is separate from and in addition to the prior
Agreement between the City and Barnes.
Scope of Services:
Barnes proposes to provide the requested professional advisory services to City staff and
assist the City in implementing new programs agreed to in its CAA agreement with
APCP, for which the City is now responsible. Barnes proposes to provide leadership and
coordination services in association with his colleague, Bruce Pflaum (dba: Barnes and
Company — resumes attached) to address the following City priorities:
First, the Barnes team, working closely with City staff and key consultants, will help pull
together a plan and strategy for advancing negotiations with the Navy to accomplish a
workable conveyance of Navy property to the City of Alameda at Alameda Point. This
effort may include recommendations and initiatives to hire new consultants, particularly
having relevant environmental services expertise. This effort will also involve overseeing
the gathering and compilation of sufficient technical environmental contamination
information and assessment of remedial solutions to enable cogent negotiations with the
Navy and informed land planning. Every effort will be made to make use of existing
information and work already completed by the City, APCP, and the Navy. The Barnes
team will provide appropriate levels of leadership and initiative in this area, working
closely with the City's legal team.
Second, the Barnes team, working closely with City staff and key consultants, will help
initiate steps leading to the creation of an updated land use plan for Alameda Point,
consistent with the goals described in the CAA agreement with APCP. The updated plan
will be developed with the professional assistance of a respected planning firm. The
Barnes team will work closely with City staff to define and implement an expedited
process to select a high quality planning organization and will provide leadership in
helping set the priorities and scope of services to be required of the planning consultants.
The planning effort will be designed to resolve certain program deficiencies and
incongruities inherent in the present APCP land use plan, closely tie the land planning use
designations to environmental constraints and Navy conveyance realities, and develop an
overall plan that preserves economic feasibility and respects as much as possible APCP
9
priorities and core requirements while also respecting the City's same core interests. This
will require an iterative approach and the management of some fairly complex five -way
discussions between the City, APCP, the planners, the environmental experts and the
Navy experts. The Barnes team will provide leadership and coordination of this process,
in close collaboration with key City staff.
Third, the Barnes team, working closely with City staff and key consultants, will help
maintain and enhance the working relationship with APCP. The team will schedule
regular meetings and channels of communication with APCP's key representatives to
provide opportunity for both groups to coordinate their work, share key information,
engage in joint problem- solving, and resolve differences, wherever possible. Providing
clear and regular channels of communication will be one of the key goals for this activity.
Fourth, the Barnes team will endeavor to set up regular channels of communication and
means for achieving timely decision - making among City staff, whose roles impact the
Alameda Point project. The Barnes team will organize regular meetings of work groups
focused on addressing the principle issues most important to the success of Alameda
Point and will serve as informal agenda -setter and coordinator for the various working
groups. It will also help set up task - oriented work groups, as needed, and help these
groups work define tasks, schedules, determine frequency of meetings, etc.
Fifth, as time permits, the Barnes team will assist City staff with special issues pertaining
to Alameda Point such as issuance of new taxable bonds, updating budgets, assisting with
executive search, interviewing new candidates, key property management dilemmas, etc.
An early priority will be to update and refine the $3.5 million budget, working closely
with key City staff. Another priority will be to organize the office and functions of the
project manager to provide for an orderly transition.
Terms of Engagement:
Consistent with paragraph six of this Agreement titled "Independent Parties ", Barnes
and Pflaum will operate as independent contractors, as Barnes has operated in the past in
his rendering of professional services to the City of Alameda. As such, the Barnes team
will be acting as advisors but not agents or temporary employees or administrators of the
City of Alameda. As such they will not be making decisions or taking executive actions
in behalf of the City, though they expect to work closely with and provide advice to City
senior staff, who will play these roles, assisted and supported by the Barnes team.
Compensation:
Commencing November 13, 2003 and throughout the life of this contract, Barnes and
Pflaum will provide services 2 1/2 days per week (each). Barnes and Pflaum will be paid
a set retainer amount for each month's work, assuming a standard four week month and a
work commitment that averages 2 1/2 days per week. Barnes' hourly compensation rate
shall be $220 per hour increasing to $228 per hour on January 1, 2004. Pflaum's hourly
compensation rate will be $80, increasing to $84 per hour on January 1, 2004. The initial
10
monthly combined retainer amount shall be $24,000 and shall increase to $24,960
commencing Jan. 1, 2004, per the above rates. In addition, out of pocket expenses will be
reimbursed.
It is understood that some weeks may involve somewhat more or less time than the
contract amount but the Barnes team will work to stay within the contract amounts each
month. Accordingly, it is understood and agreed that Barnes and Pflaum are not providing
full time equivalent service and are not fulfilling all the functions of the permanent
project manager for Alameda Point. As such, they will not be supervising personnel,
making contractual commitments in behalf of the City, signing documents that obligate
the City legally, writing routine staff reports, attending all City staff meetings, etc. but
instead, will focus on the priority tasks described above with the goal of facilitating
positive action and results.
Miscellaneous Provisions:
Barnes and Pflaum will need to have use of suitable office space at Alameda West and
use of a secretary during many of the tunes they are at Alameda West. It is understood
that they will sometimes work at Alameda each week and sometimes at their offices in
San Francisco. They will endeavor to establish regular times each week when they will be
at Alameda, with open office availability and regular meeting schedules with client
representatives. Mr. Pflaum will receive his direction from Mr. Barnes and together they
will receive their direction from the City Manager, James Flint or his alternate, City
Director of Development Services, Paul Benoit.
11
Alameda Reuse and Redevelopment Authority
Interoffice Memorandum
January 20, 2004
TO: Honorable Chair and Members of the
Alameda Reuse and Redevelopment Authority
FROM: James M. Flint
Executive Director
3 -B
SUBJ: Report and Recommendation from the Executive Director that the ARRA
Governing Body Authorize the Executive Director to Approve an
Amendment adding $176,000 and Extending the Term of the Agreement
with The Ferguson Group for Policy Consultation and Governmental
Relations Services for Alameda Point
Background
On January 1, 2004, The Ferguson Group (TFG), a governmental relations consulting
firm, entered into an agreement with ARRA to provide advisory services regarding
conveyance and clean -up issues for Alameda Point. The Ferguson Group is under a one-
month contract in order to work on these issues during the month of January. January is a
critical time period for framing major policy issues and concerns and presenting these
issues to various federal agencies due to the federal calendar.
Discussion
The attached amendment in the amount of $176,000 has been prepared to cover the
period from February 5 through December 31, 2004. The consultant agreement includes
a scope of services to be performed by the consultant, as directed by the ARRA, that
focuses on advising the ARRA on conveyance and phasing- related issues at Alameda
Point, as well as reviewing and working towards Navy remediation efforts which meet the
land conveyance goals for Alameda Point. The overall goal of TFG's work effort is to
develop a cooperative strategy with the Navy to achieve the greatest redevelopment and
conveyance benefit for the remediation funds expended.
Fiscal Impact
The funding source for the Amendment to Agreement, in the amount of $176,000, is the
Alameda Point Refunding Bond 2003 (for Predevelopment). Therefore, there is no fiscal
impact to the general fund.
Dedicated to Excellence, Committed to Services
Honorable Chair and Members of the
Alameda Reuse and Redevelopment Authority
January 20, 2004
Page 2
Recommendation
The Executive Director recommends that the ARRA Governing Board approve the
proposed amendment adding $176,000 and extending the term of the Agreement with
The Ferguson Group through December 31, 2004.
JF/DP /IF
Respectfully submitted,
Paul Benoit
r Deputy Executive Director
Attachments: Amendment to Agreement — The Ferguson Group
Dedicated to Excellence, Committed to Services
G: \Comdev\AP Project Manager \1`FGstaff report.doc
CONSULTANT AGREEMENT
THIS AGREEMENT, entered into this 1st day of January 2, by and between
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY (hereinafter referred to as
"ARRA ") of the CITY OF ALAMEDA, a municipal corporation (hereinafter referred to as
"City "), and THE FERGUSON GROUP, a limited liability corporation, whose address 1130
Connecticut Avenue NW, Suite 300, Washington DC 20036 (thereinafter referred to as
"Consultant "), is made with reference to the following:
RECITALS:
A. ARRA is a Joint Powers Authority organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being conducted
under the statutes of the State of California and the Charter of the City.
B. Consultant is specially trained, experienced and competent to perform the special
services which will be required by this Agreement; and
C. Consultant possess the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement on the terms and conditions
described herein.
T). ARRA and Consultant desire to enter into an agreement for services upon the terms
and conditions herein.
NOW, THEREFORE, it is mutually agreed by and between ttte undersigned parties as
follows:
1. TERM:
The term of this Agreement shall commence on the 1st day of January 2004, and shall
terminate on the 4th day of February 2004, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED:
Consultant shall perform each and every service set forth in Exhibit "A ", which is attached
hereto and incorporated herein by this reference.
3. COMPENSATION TO CONSULTANT:
Consultant shall be compensated for services performed pursuant to this Agreement in the
amount not to exceed $25,000.00 (Exhibit "B ").
4. TIME IS OF THE ESSENCE:
Consultant and ARRA agree that time is of the essence regarding the performance of this
Agreement.
5. STANDARD OF CARE:
Consultant agrees to perform all services hereunder in a manner commensurate with the
prevailing standards of like professionals in the San Francisco Bay Area and agrees that all
services shall be performed by qualified and experienced personnel who are not employed by City
nor have any contractual relationship with City.
1
6. INDEPENDENT PARTIES:
ARRA and Consultant intend that the relationship between them created by this Agreement
is that of employer-independent Consultant. The manner and means of conducting the work are
under the control of Consultant, except to the extent they are limited by statute, rule or regulation
and the express terms of this Agreement. No civil service status or other right of employment will
be acquired by virtue of Consultant's services. None of the benefits provided by City to its
employees, including but not limited to unemployment insurance, workers' compensation plans,
vacation and sick leave are available from City to Consultant, its employees or agents. Deductions
shall not be made for any state or federal taxes, FICA payments, PERS payments, or other
purposes normally associated with an employer-employee relationship from any fees due
Consultant. Payments of the above items, if required, are the responsibility of Consultant. •
7. IMMIGRATION REFORM AND CONTROL ACT (IRC4»
Consultant assumes any and all responsibility for verifying the identity and employment
authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA
or other federal, or state rules and regulations. Consultant shall indemnify and hold ARRA
harmless from and against any loss, damage, liability, costs or expenses arising from any
noncompliance of this provision by Consultant.
8. NON-DISCRIMINATION:
Consistent with City's policy that harassment and discrimination are unacceptable
employer/employee conduct, Consultant agrees that harassment or discrimination directed toward
a job applicant, a City/ARRA employee, or a citizen by Consultant or Consultant's employee on
the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital
status, pregnancy, sex, age, or sexual orientation will not be tolerated. Consultant agrees that any
and all violations of this provision shall constitute a material breach of this Agreement.
9. ROLDJIARMLESS:
Consultant shall indemnify, defend and hold harmless ARRA, City, its City Council, boards,
commissions, officials, employees and volunteers ("Indemnitees") from and against any and all loss,
damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees
("Claims"), arising from or in any manner connected to Consultant's negligent act or omission,
whether alleged or actual, regarding performance of services or work conducted or performed
pursuant to this Agreement. If Claims are filed against Indemnitees which allege negligence on
behalf of the Consultant, Consultant shall have no right of reimbursement against Indemnitees for
the costs of defense even if negligence is not found on the part of Consultant. However, Consultant
shall not be obligated to indemnify Indemnitees from Claims arising from the sole or active
negligence or willful misconduct of Indemnitees.
As to Claims for professional liability only, Consultant's obligation to defend Inderrinitees
(as set forth above) is limited to the extent to which its professional liability insurance policy will
provide such defense costs.
2
10. INSURANCE;
On or before the commencement of the terms of this Agreement, Consultant shall furnish
ARRA with certificates showing the type, amount, class of operations covered, effective dates and
dates of expiration of insurance coverage in compliance with paragraphs 10A, B, C and 1). Such
certificates, which do not limit Consultant's indemnification, shall also contain substantially the
following statement: "Should any of the above insurance covered by this certificate be canceled
or coverage reduced before the expiration date thereof, the insurer affording coverage shall
provide thirty (30) days' advance written notice to.the ARRA by certified mail, "Attention: Risk
Manager." It is agreed that Consultant shall maintain in force at all tittles during the performance
of this Agreement all appropriate coverage of insurance required by this Agreement with an
insurance company that is acceptable to ARRA and licensed to do insurance business in the State
of California. Endorsements naming ARRA, City of Alanida, its City Council, boards,
commissions, officials, employees and volunteers as additional insured shall be submitted with the
insurance certificates.
A. COVERAGE;
Consultant shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage in the following minimum limits:
Bodily Injury: $500,000 each occurrence
$1,000,000 aggregate - all other
Property Damage: $100,000 each occurrence
$250,000 aggregate
If submitted, combined single limit policy with aggregate limits in the amounts of
$1,000,000 will be considered equivalent to the required minimum limits shown above.
(3) Automotive:
Comprehensive automobile liability coverage in the
following minimum limits:
Bodily injury: $500,000 each occurrence
Property Damage: $100,000 each occurrence
or
Combined Single Limit: $500,000 each occurrence
(4) Professional Liability:
Professional liability insurance which includes coverage for the professional
acts, errors and omissions of Consultant in the amount of at least $1,000,000.
B. SUBROGATION WAIVER:
Consultant agrees that in the event of loss due to any of the perils for which it has agreed
to provide comprehensive general and automotive liability insurance, Consultant shall look solely
to its insurance for recovery. Consultant hereby grants to ARRA, on behalf of any insurer
providing comprehensive general and automotive liability insurance to either Consultant or ARRA
with respect to the services of Consultant herein, a waiver of any right to subrogation which any
such insurer of said Consultant may acquire against ARRA by virtue of the payment of any loss
under such insurance,
3
C. FAILURE TO SECURE:
If Consultant at any time during the term hereof should fail to sure or maintain the
foregoing insurance, ARRA shall be permitted to obtain such insurance in the Consultant's name
or as an agent of the Consultant and shall be compensated by the Consultant for the costs of the
insurance premiums at the maximum rate permitted by law and computed from the date written
notice is received that the premiums have not been paid.
D. ADDITIONAL INSURED:
ARRA, City of Alameda, its City Council, boards, commissions, officials, employees and
volunteers shall be named as an additional insured under all insurance coverages, except worker's
compensation insurance. The naming of an additional insured shall not affect any recovery to which
such additional insured would be entitled under this policy if not named as such additional insured.
An additional insured named herein shall not be held liable for any premium, deductible portion of
any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held
by an additional insured shall not be required to contribute anything toward any loss or expense
covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by ARRA are not represented as being sufficient to protect
Consultant. Consultant is advised to consult Consultant's insurance broker to determine adequate
coverage for Consultant.
11. CONFLICT OF INTEREST:
Consultant warrants that it is not a conflict of interest for Consultant to perform the services
required by this Agreement. Consultant may be required to fill out a conflict of interest form if the
services provided under this Agreement require Consultant to make certain governmental decisions
or serve in a staff capacity as defined in Title 2, Division 6, Section 18700 of the California Code
of Regulations.
12. PROHIBITION AGAINST TRAN5FRS:
Consultant shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest
therein, directly or indirectly, by operation of law or otherwise, without prior written consent of
ARRA. Any attempt to do so without said consent shall be null and void, and any assignee,
sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer. However, claims for money by Consultant from ARRA under
this Agreement may be assigned to a bank, trust company or other financial institution without prior
written consent. Written notice of such assignment shall be promptly furnished to ARRA by
Consultant.
The sale, assignment, transfer or other disposition of any of the issued and outstanding
capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate
member or cotenant, if Consultant is a partnership or joint venture or syndicate or cotenancy, which
shall result in changing the control of Consultant, shall be construed as an assignment of this
Agreement. Control means fifty percent (50 %) or more of the voting power of the corporation.
4
13. SUBCONSULTANT Ali `ROVAL:
Unless prior written consent from ARRA is obtained, only those pe ople and subconsultants
whose names are listed in Consultant's bid shall be used in the performance of this Agreement.
Requests for additional subcontracting shall be submitted in writing, describing the scope of
work to be subcontracted and the name of the proposed subconsultant. Such request shall set forth
the total price or hourly rates used in preparing estimated costs for the subconsultant's services.
Approval of the subconsultant may, at the option of AR.RA, be issued in the form of a Work Order.
In the event that Consultant employs subconsultants, such subconsultants shall be required
to furnish proof of workers' compensation insurance and shall also be required to carry general and
automobile liability insurance in reasonable conformity to the insurance carried by Consultant. In
addition, any work or services subcontracted hereunder shall be subject to each provision of this
Agreement.
14. PERMITS AND LICENSES:
Consultant, at its sole expense, shall obtain and maintain during the term of this Agreement,
all appropriate permits, certificates and licenses, including a City of Alameda Business License, that
may be required in connection with the performance of services hereunder.
15. REPORTS:
Each and every report, draft, work product, map, record and other document reproduced,
prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement
shall be the exclusive property of ARRA.
No report, information nor other data given to or prepared or assembled by Consultant
pursuant to this Agreement shall be made available to any individual or organization by Consultant
without prior approval by ARRA.
Consultant shall, at such time and in such form as ARRA may require, furnish reports
concerning the status of services required under this Agreement.
16. RECORDS:
Consultant shall maintain complete and accurate records with respect to sales, costs,
expenses, receipts and other such information required by ARRA that relate to the performance of
services under this Agreement.
Consultant shall maintain adequate records of services provided in sufficient detail to permit
an evaluation of services. All such records shall be maintained in accordance with generally
accepted accounting principles and shall be clearly identified and readily accessible. Consultant shall
provide free access to such books and records to the representatives of ARRA or its designees at all
proper times, and gives ARRA the right to examine and audit same, and to make transcripts
therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and
activities related to this Agreement. Such records, together with supporting documents, shall be kept
separate from other documents and records and shall be maintained for a period of three (3) years
after receipt of final payment.
If supplemental examination or audit of the records is necessary due to concerns raised by
ARRA's preliminary examination or audit of records, and ARRA's supplemental examination or
audit of the records discloses a failure to adhere to appropriate internal financial controls, or other
breach of contract or failure to act in good faith, then consultant shall reimburse ARRA for all
reasonable costs and expenses associated with the supplemental examination or audit.
17. NOTICES:
All notices, demands, requests or approvals to be given under this Agreement shall be given .
in writing and conclusively shall be deemed served when delivered personally or on the second
business day after the deposit thereof in the United States Mail, postage prepaid, registered or
certified, addressed as hereinafter provided.
All notices, demands, requests, or approvals from Consultant to ARRA shall be addressed
to ARRA at:
Alameda Reuse and Redevelopment Authority
City of Alameda
950 West Mall Square, 2nd Floor
Alameda, CA 94501
ATTN: Debbie Potter
All notices, demands, requests, or approvals from
to Consultant at:
The Ferguson Group
1130 Connecticut Avenue NW, Suite 300
Washington, DC 20036
ATTN: Bill Ferguson
to Consultant shall be addressed
18. TERMINATION:
In the event Consultant fails or refuses to perform any of the provisions hereof at the time
and in the manner required hereunder, Consultant shall be deemed in default in the performance of
this Agreement. If such default is not cured within a period of seven (7) days after receipt by
Consultant from ARRA of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, ARRA may terminate the Agreement forthwith by giving to the
Consultant written notice thereof.
ARRA shall have the option, at its sole discretion and without cause, of terminating this
Agreement by giving thirty (30) days' prior written notice to Consultant as provided herein. Upon
termination of this Agreement, each party shall pay to the other party that portion of compensation
specified in this Agreement that is earned and unpaid prior to the effective date of termination.
19. COMPLIANCE WITH MARSH CRUST ORDINANCE:
Contractor shall perform all excavation work in compliance with the City's Marsh Crust
Ordinance as set forth at Section 13 -56 of the Municipal Code. Prior to performing any
excavation work, Contractor shall verify with the Building Official whether the excavation work
is subject to the Marsh Crust Ordinance. Contractor shall apply for and obtain permits from
Building Services on projects deemed to be subject to the Marsh Crust Ordinance.
20. COST,OF LITIGATION;
If any legal action is necessary to enforce any provision hereof or for damages by reason of
an alleged breach of any provisions of this Agreement, the prevailing party shall be entitled to
receive from the losing party all costs and expenses in such amount as the Court may adjudge to be
reasonable, including attorneys' fees.
6
21. COMPLIANCES:
Consultant shall comply with all laws, state or federal and all ordinances, rules and
regulations enacted or issued by ARRA.
22. CONFLICT OF LAW :,
This Agreement shall be interpreted under, and enforced by the laws of the State of
California excepting any choice of law rules which may direct the application of laws of another
jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules,
and regulations of the authorities having jurisdiction over this Agreement (or the successors of those
authorities.)
Any suits brought pursuant to this Agreement shall be filed with the coots of the County of
Alameda, State of California.
23. ADVERTISEMVNT:.
Consultant shall not post, exhibit, display or allow to be posted, exhibited, displayed any
signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services
performed under this Agreement unless prior written approval has been secured from ARRA to do
otherwise.
24. WAIVER:
A waiver by ARRA of any breach of any term, covenant, or condition contained herein, shall
not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or
condition contained herein, whether of the same or a different character.
25. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held
to vary the provisions hereof. Any modification of this Agreement will be effective only by written
execution signed by both ARRA and Consultant.
26. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the Agreement shall be deemed
to be enacted herein, and the Agreement shall be read and enforced as though each were included
herein. If through mistake or otherwise, any such provision is not inserted or is not correctly
inserted, the Agreement shall be amended to make such insertion on application by either party.
27. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the Agreement and
in no way affect, limit or amplify the terms or provisions of this Agreement.
7
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the day
and year first above written.
THE FERGUSON GROUP
By: 'ad /
Title: ewe.
Date: ligor-
e‘44-6,v4.)
gycomtlevicontritcts/arrairbrguson/cantmcicloc
8
ALAMEDA REUSE AND
REDEVELOPMENT AUTHORITY
James M. Flint
City Manager
Date
RECOMMENDED FOR APPROVAL:
ul Benoi
evelopmerit Services ector
Date: 1
bbie Potter, Manager
Base Reuse & J.edeve1,opment Division
Date: qi
APPROVED AS TO FORM:
?■tik,
eresa Hi ghsrniiii
Assistant City Attorney
Exhibit "A"
SCOPE OF WORK
1. TFG will work closely with the ARRA conveyance team in developing specific positions on
outstanding EDC issues and an appropriate strategy to convey those positions directly to
Navy, as well as through third parties that can aid ARRA's efforts to reach. an equitable
resolution. TPG will provide specific advice on content of written documents with the intent
of presenting ARRA's position in the most favorable light. Anticipated near -term follow -on
efforts include meetings with Southwest Division BRAC staff and Headquarters personnel
to clarify any remaining uncertainties on the EDC and to reinforce the intent for a closer and
mutually beneficial working relationship leading to conveyance of all remaining property.
2. TFG will review remediation efforts to date in concert with ARRA's conveyance team to
ascertain areas requiring clarification as to technical standards and proposed remediation
methodology. An initial primary goal of this effort is to ensure all parties, including TFG,
have a common understanding of current conditions, intended levels of remediation,
deficiencies in current site characterizations, and cumin plans for additional
investigative/planning efforts. The follow -on goal is to work with the conveyance team to
develop appropriate strategies to address areas of deficiency.
3. Parallel with the remediation process, TFG will pursue Navy's early identification of
anticipated Land Use Controls (LUCs) for property to be conveyed and work closely with
the conveyance team to provide advice on the practical aspects of LUCs and areas of
potential negotiation with Navy to ensure maximum flexibility /ease of development
consistent with anticipated end -state environmental conditions.
4. TFG will work closely with the conveyance team in developing a parcel remediation
prioritization that promotes the ARRA's goals in redevelopment, based on the knowledge
gained during step 2, available Navy funding and established ARRA redevelopment
requirements. Central to this effort is the need to build a cooperative strategy with Navy to
achieve the greatest redevelopment and conveyance benefit for remediation funds expended.
5. Based on the above, TFG will work closely with the conveyance team and Navy to accelerate
renediation funding from available land sales proceeds and other sources accruing to Navy.
G. TFG will provide the conveyance team with expert advice on the advantages /disadvantages
of the various conveyance methods and content of proposed deeds for parcels as they become
available for conveyance to ARRA. TFG will act as a primary advisor on strategy and
substance of the negotiations. The follow -on goal is to reach an agreement with the Navy on
a Phase 1 conveyance and develop the necessary agreements for such conveyance.
7. TFG will endeavor to act as a mediator and advisor between any/all parties to the process,
with particular emphasis on early identification and resolution of regulatory conflicts that
could impede the conveyance process to ARRA's disadvantage.
8. If requested, TFG will advise and, where appropriate, represent ARRA with other
governmental organizations and public policy decision makers.
9
Exhibit "B"
COMI$NSATION
To provide consulting and governmental relations services for ARRA in support of the transfer of
Department of Navy land, environmental remediation, and economic redevelopment, The Ferguson
Group (TFG) will receive a retainer of $10,000,00. Reimbursement of incidental expenses, travel,
and excess hourly work, due to the fact that the first month will require an intensive amount of work
as a detailed and robust governmental relations strategy is developed, will not exceed $15,000.00.
TFG will seek guidance from ARRA with respect to hours in excess of those covered by the retainer
to assure that the work is consistent with A.RRA's goals. TFG further stipulates that all travel
undertaken on behalf of ARRA business shall be reasonable in nature and shall be approved by
ARRA in advance. TFG will be reimbursed at a rate of $285 per hour for principal, $190 for senior
associates, $130 for associates, and $90 for research assistants.
10
AMENDMENT TO AGREEMENT
This Amendment of the Agreement, entered into this U e naft 2004, by and to
between ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY (he to as
as "ARRA ") of the CITY OF ALAMEDA, a municipal corporation o whose addre s 1130
"City "), and THE FERGUSON GROUP, a limited liability rP oraton,
Connecticut Avenue NW, Suite 300, Washington DC 20036 (hereinafter referred to as
"Consultant "), is made with reference to the following:
RECITALS:
A.
On January 1, 2004 an agreement was entered into by and between ARRA and
Consultant (hereinafter "Agreement ").
B. ARRA and Consultant desire to modify the Agreement on the terms and
conditions set forth herein.
NOW, THEREFORE, it is mutually agreed by and between and undersigned parties as
follows:
1. Paragraph 1 ( "Term ") of the Agreement is modified to read as follows:
"The term of this Agreement shall commence on the l5t day of January 2004, and shall
terminate on the 31st day of December 2004, unless terminated earlier as set forth herein ".
2. Paragraph 2 ( "Services to be Performed ") of the Agreement is modified to read as
follows:
nt in
"Consultant shall be compensated for services January 1e, this
February 4,e2004
the amount not to exceed $25,000.00 for the period y 2004 through
(Exhibit "B ") and in the amount not to exceed $176,000.00 for the period February 5, 2004
through December 31, 2004 (Exhibit "B -1 ")."
3. Except as expressly modified herein, all other terms ffand covenants set forth in the
Agreement shall remain the same and shall be in fu ll force and
IN WITNESS WHEREOF, the parties hereto have caused this modification of
Agreement to be executed on the day and year first above written.
ALAMEDA REUSE &
REDEVELOPMENT AUTHORITY
THE FERGUSON GROUP
1
/JamrS M. Flint
Cit Manager,
• Date:
Alameda Reuse and Redevelopment Authority
Interoffice Memorandum
February 4, 2004
To: Honorable Members of the Alameda Reuse and
Redevelopment Authority
From: James M. Flint
Executive Director
Subject: Recommendation from the Executive Director to Approve the Property
Management Agreement with PM Realty Group
Background
On August 9, 2001, the ARRA selected Alameda Point Community Partners (APCP) as the
Master Developer for Alameda Point. On January 15, 2002, the City Council /ARRA entered
into an Exclusive Negotiation Agreement (ENA) with APCP that provided a negotiating
framework for the City and APCP and contemplated a number of agreements necessary to
redevelop Alameda Point. The first agreement entered into between ARRA and APCP was an
interim Property Management Agreement beginning the transition from an ARRA- managed
facility to an APCP - managed property. In November 2003, the ARRA entered into a
Conditional Acquisition Agreement with APCP. At that time, Industrial Realty Group (IRG) the
partner charged with the oversight of leasing and property management of Alameda Point
decided to assume a less active role in the APCP partnership. APCP recommended that the
ARRA allow their subcontract property manager, PM Realty Group (PM), to be assigned the
APCP interest in the Property Management Agreement. After reviewing options with APCP and
legal counsel it was concluded that the ARRA' s interests would best be served by terminating
the existing agreement with APCP rather than assigning the interest to PM, and entering into a
new agreement directly between PM and the ARRA.
Discussion
The attached Property Management Agreement retains PM as ARRA's agent for all property
management and leasing activities. Exhibit B of the Agreement contains all of the leasing
provisions. These provisions reflect industry standards and should result in lease renewals for
existing tenants, as well as leases for buildings that have not been previously occupied. PM shall
receive a commission of:
• 5% of the monthly rental rate on new leases with an intial term 0 -5 years in term; and
• 2.5% of the monthly rental rate for lease renewals, not to exceed 5 years (year 6 -10); and
• There is no commission on long -term leases beyond year ten.
Leasing commission will be payable monthly, only out of rental payments actually received.
Honorable Members of the Alameda Reuse and February 4, 2004
Redevelopment Authority Page 2
PM will locate its office in Building One at Alameda Point. As with the original agreement,
City staff will be responsible for the internal maintenance of all City - occupied buildings at
Alameda Point (see Exhibit A -1, Part 2 of the Property Management Agreement) and the
Alameda Point Collaborative (APC) property is excluded from this Agreement. However APC
and PM will continue to work closely to coordinate activities and share information. PM also
will continue oversight of the residential and port operation management contracts (Gallagher &
Lindsey and Trident, respectively).
Fiscal Impact
The approved budget for fiscal year 2003 -2004 was $3,015,031, which included payments to
third parties for port operations and residential management. Because of salary savings and
conservative spending, the budget reforecast estimates $2,729,815 for the year. The Agreement
will be fully funded with lease revenues.
Leasing commissions will be paid to PM in addition to the property management budget. PM
will work with Sam Swan from Cushman and Wakefield to market and lease -up Alameda Point.
Leasing commission will be paid as described above.
Recommendation
The Executive Director recommends that the ARRA approve the attached Property Management
Agreement with PM Realty Group to carry out property management and leasing activities at
Alameda Point.
Respectfully submitted,
Pau C enoit
Development Services Director
By: Nanette Banks
Finance & Administration Division Manager
JF /DY/NB:dc
Attachment: Property Management Agreement
G: \Comdev\ Banks \APCPPropMgmntAgree.ARRA_2.doc
PROPERTY MANAGEMENT AGREEMENT
THIS PROPERTY MANAGEMENT AGREEMENT (this "Agreement "), made as of this
day of , 200_ ( "Effective Date "), between the ALAMEDA REUSE AND
REDEVELOPMENT AUTHORITY, a joint powers authority formed under California law
( "ARRA "), and PM REALTY GROUP, L.P., a Delaware limited partnership ( "Property
Manager "), of 333 Bush Street, Suite 1510, San Francisco, California 94104.
RECITALS
This Agreement is entered upon the basis of the following facts, understandings and
intentions of the ARRA and Property Manager, sometimes collectively referred to herein as the
"Parties ".
A. ARRA controls, pursuant to separate documentation entered into with United
States Department of the Navy (the "Navy "), certain real property together with buildings and
other improvements situated thereon (the "Site "), located within the boundaries of the Alameda
Point Improvement Project ( "APIP ") redevelopment area in the City of Alameda (the "City "),
County of Alameda, State of California. The Site, also referred to as the "Development," is
shown on the "Map of Site" attached hereto as Exhibit A and incorporated herein by reference.
For the purpose of this Agreement, the term "Development" shall exclude those properties
( "Excluded Properties ") identified on Exhibit A -1 attached hereto. The Excluded Properties
consist of: (a) those properties leased, or to be leased, pursuant to either (i) existing Interim
Subleases or (ii) existing or to be executed Legally Binding Agreements with the Alameda Point
Collaborative or its successors in interest, which properties are more particularly shown on the
map attached as Exhibit A -2 and are listed in Exhibit A -1, Part 1; and (b) the City- occupied
buildings listed in Exhibit A -1, Part 2. Property Manager shall have no responsibility or
obligation to provide Property Management Services (as hereinafter defined) to the Excluded
Properties.
B. ARRA desires to obtain the services of Property Manager as property manager of
the Development with responsibilities for managing, operating, maintaining and servicing the
Development and for the performance on behalf of ARRA of certain obligations with respect to
the Development, as more specifically set forth in this Agreement, all such responsibilities being
in furtherance of the redevelopment and reuse of the Site.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
Parties agree as follows:
ARTICLE I
DUTIES OF PROPERTY MANAGER
Section 1.1 Appointment of Property Manager.
(a) ARRA hereby appoints Property Manager as property manager of the
Development with the responsibilities and upon the terms and conditions outlined in this
Agreement, and Property Manager hereby accepts such appointment.
(b) Notwithstanding any other provisions of this Agreement to the contrary,
this Agreement is subject to the terms and conditions of that certain Lease in Furtherance of
Conveyance, dated June 6, 2000, between the United States Navy and the ARRA, as amended
(the "LIFOC "). During the term of this Agreement, Property Manager shall perform its
Management Services consistent with the provisions of the LIFOC.
Section 1.2 Property Management of the Development. The Property Manager shall
diligently perform its duties hereunder and shall devote sufficient time and effort to the
Development to ensure that it is managed, leased, operated, maintained and serviced in good,
well- maintained condition and in a manner comparable to similar professionally managed
developments. In addition to providing the Property Management Services (as hereinafter
defined), Property Manager shall perform such other services as ARRA may reasonably request
in connection with the Development, consistent with its status as a professionally managed
Development of its type.
Section 1.3 Specific Management Services. Without limiting the generality of any
other term or provision of this Agreement, Property Manager shall provide the following services
(the "Property Management Services ") in furtherance of the redevelopment and reuse of the Site:
(a) Personnel. Property Manager shall, as employees of Property Manager
and not of ARRA, hire, pay, supervise and discharge all employees and personnel necessary for
the operation of the Development. Such personnel shall in every instance be the employees or
independent contractors of Property Manager and not of ARRA. Subject to reimbursement as
hereafter set forth, the salaries, wages and other compensation and fringe benefits (including,
without limitation, workers' compensation and other insurance, employer's and employee's taxes
and vacation, hereafter collectively "Wages ") of such employees and personnel shall be paid by
Property Manager and approved by ARRA. Additionally, at the expense of Property Manager,
executive personnel of Property Manager will be charged with the performance of Property
Manager's obligations under this Agreement and with the general supervision, direction and
control of Development personnel. Property Manager shall comply with all laws, statutes and
ordinances relating to the employment of its employees, including, without limitation, those
requiring workers' compensation insurance to cover all of Property Manager's employees.
Property Manager shall remove from the Development all persons whom the Property Manager,
in the exercise of its good business judgment, or whore ARRA, in its reasonable judgment,
deems unnecessary or undesirable for the operation and management of the Development, which
removal shall be in compliance with applicable laws, statutes and ordinances.
(b) Collection and Handling of Money.
(i) Property Manager shall diligently undertake the collection of rents
and other charges payable by tenants in the Development under the terms of their leases and any
sums otherwise payable to ARRA with respect to the Development. All sums collected by
Property Manager shall be deposited immediately in an interest - bearing account (all interest shall
accrue to the benefit of ARRA), approved by and established in ARRA's name, for the benefit
of, and held in trust for, ARRA, in a bank which has been approved by ARRA. Funds collected
2
by Property Manager from the Development shall not be commingled with any other funds
collected by Property Manager from properties not a part of the Development. If required by
law, Property Manager shall establish separate accounts for holding tenants' security deposits,
and funds in such accounts shall not be commingled with other funds of Property Manager.
Funds may only be withdrawn from the account by Property Manager for permissible
expenditures pursuant to this Agreement.
(ii) Property Manager acknowledges that ARRA has certain regularly
scheduled payments that it must make on a regular basis out of the revenues from the
Development, including debt service on bonds. Within fifteen (15) days after the end of each
calendar month, Property Manager shall cause to be disbursed to ARRA all funds in any of the
bank accounts established by Property Manager (other than any accounts established for the
deposit of tenants' security deposits), less any amounts which are necessary in order to meet
anticipated expenses of the Development coming due during the next thirty (30) days,
accompanied by the reports required under Section 1.3(d) below.
(c) Surety Bond. Employees of Property Manager who are responsible for, or
have access to, money of ARRA shall be bonded by a fidelity bond company at the expense of
Property Manager or covered under Property Manager's Crime insurance policy.
(d) Books and Records.
(i) Property Manager shall maintain complete books and records in
accordance with generally accepted accounting principles applied on a consistent basis in
connection with its management and operation of the Development and such books and records
shall be clearly identified and readily accessible.
(ii) Property Manager shall make the books of account and all other
records relating to, or reflecting the operation of the Development, including without limitation,
computer records and electronic data, all of which Property Manager agrees to keep safe,
available and separate from any records not relating to the Development, available to ARRA and
its representatives at all reasonable times for examination, audit, inspection and transcription.
Property Manager shall provide access to ARRA or its respective designees during normal
business hours upon request by ARRA. The records shall be kept on -site at the Development as
soon as Property Manager establishes a property management office on -site; prior to such time
Property Manager shall make the records available to ARRA at the Development within three (3)
business days of request by ARRA. ARRA may examine and audit the records, make any copies
or transcripts therefrom it wishes, and inspect all work, data, documents, proceedings, and
activities related to this Agreement. Such records shall be kept separate from other documents of
Property Manager and shall be maintained for a period of three (3) years after receipt of final
payment. For purposes of this provision, the term "record" shall have the definition it has in the
Public Records Act of the State of California (Cal. Gov't. Code Section 6250 et seq.).
(iii) Upon ARRA' s reasonable request, Property Manager shall deliver
to ARRA copies of any source materials utilized by Property Manager in preparing the records,
books and accounts.
3
(iv) Upon termination of the Agreement, Property Manager, at
ARRA's written request, shall turn over copies of all such books and records to ARRA.
(v) Property Manager agrees to render to ARRA on or before the
twentieth (20th) day of each calendar month a detailed financial report as specified in Article III.
Property Manager shall, at ARRA's request (such notice to be not less than sixty (60) days), have
an annual audit of the books and records of the Development made by a fine of certified public
accountants or other auditors approved by ARRA, which audit shall be certified as to the fairness
of the presentation of such financial statements and notes and the preparation thereof in
accordance with generally accepted accounting principles applied on a consistent basis, but shall
in no event include any tax return preparation relating to the Development. The expense of the
annual audit shall be an expense of ARRA.
(vi) If supplemental examination or audit of the records is necessary
due to concerns raised by the City's preliminary examination or audit of records, and the City's
supplemental examination or audit of the records discloses a failure to adhere to appropriate
internal financial controls, or other breach of contract or failure to act in good faith, then
Property Manager shall reimburse the City for all reasonable costs and expenses associated with
the supplemental examination or audit.
(vii) Property Manager will cooperate with, and give reasonable
assistance to, any accountant or other person designated by ARRA to examine such records.
(e) Repairs and Maintenance.
(i) Property Manager shall make all repairs and perform all
maintenance on the buildings, grounds and other improvements of the Development necessary to
maintain the Development in good well- maintained condition, in a manner comparable to similar
professionally managed Developments and otherwise in accordance with the approved Annual
Management Plan (as defined in Section 3.1 below) and any other standards approved by ARRA
from time to time. Property Manager shall also perform or furnish any and all emergency repairs
or services necessary for the preservation of the Development or to avoid the suspension of any
service to the Development or danger to life or property. Property Manager shall give prompt
notice of any emergency repairs to ARRA and to make reasonable efforts to secure ARRA's
prior written approval. Emergency repairs or services may be made or furnished by Property
Manager without ARRA's prior approval, but only if it is not reasonably feasible to secure such
prior approval. In any event, Property Manager shall, not later than two (2) business days after
perfornling or furnishing an emergency repair or service, notify ARRA of the details and cost
thereof.
(ii) Notwithstanding the provisions of Section 1.3(e)(i) above,
Property Manager's obligations for repair and maintenance of the Site and the Development shall
not include repair and maintenance of utilities located within the public rights of way. The
property Property Manager shall maintain, or cause to be maintained, shall include the lateral
utility lines from the public rights of way and within the buildings for the Development. The
utilities located within the public rights of way (or street areas which are intended to become
public rights of way) shall be the responsibility of ARRA, the City or the responsible utility, as
4
more particularly described in the Annual Management Plan. For purposes of determining what
constitutes "public rights of way," the parties hereto agree the "public rights of way" shall mean
the existing roadways up to the curb line.
(iii) Notwithstanding any other provision of this Agreement to the
contrary, except for exterior services to the City- occupied buildings (other than roof repairs),
Property Manager shall have no obligations to perform Property Management Services with
regard to any of the Excluded Properties, which responsibility shall be the sole responsibility of
ARRA or other parties to which such responsibilities have been delegated by ARRA or City.
(f) Service Contracts. Subject to the provisions of Section 2.2 below,
Property Manager shall enter into, as "PM Realty Group, L. P. as agent for Alameda Reuse and
Redevelopment Authority" as contractor (unless ARRA otherwise directs), contracts (in the
ARRA's approved form of contract attached hereto as Exhibit D) for the furnishing to the
Development of such utility, maintenance and other services and for the acquisition of such
equipment and supplies as may be necessary for the management, operation, maintenance and
servicing of the Development in accordance with this Agreement. Unless otherwise approved in
writing by ARRA, all such contracts entered into pursuant to this subsection shall be cancelable
upon not more than thirty (30) days' prior written notice and shall be assignable to ARRA, at
ARRA's request. To the extent that any such contracts entered into pursuant to this subsection
are required to be in the name of the ARRA or the City, as contractor, such contracts shall be
submitted to ARRA for processing, review and execution by ARRA or the City, as appropriate.
Property Manager shall be responsible for the performance of all such contracts entered into
pursuant to this subsection and ARRA shall have the right to enforce the obligations of the
contractor under such contracts, whether such contractor is Property Manager, ARRA, or the
City directly against Property Manager and it shall be Property Manager's responsibility to
enforce the terms of such contracts against the party(ies) to such contracts other than the
contractor, whether such contractor is Property Manager, ARRA, or the City.
(g) Other Services. Property Manager shall perform all other services which
are normally performed in connection with the operation and management of similar
professionally managed developments; and specifically, without limiting the generality of the
foregoing, Property Manager shall perform, without additional charge, all services normally
provided to tenants of similar developments.
(h) Compliance With Laws, Permits and Licenses. With regard to the
performance of the Property Management Services, Property Manager shall take such action as
may be necessary to comply with all laws, rules and regulations and any and all orders or
requirements of any governmental authority having jurisdiction there over affecting the
Development, including, but not limited to, SB -975 enacted by the State of California on January
1, 2002. Property Manager shall be responsible for assuring that all use permits necessary for
tenancies are obtained. Property Manager shall not knowingly permit the use of the
Development for any purpose which might void or increase the premiums payable under any
insurance policies held by ARRA. Property Manager shall obtain and maintain during the term
of this Agreement all appropriate permits, certificates and licenses, including, but not limited to,
a City of Alameda Business License, that may be required in connection with the performance of
services hereunder. To the extent permits, certificates or licenses are necessary for Property
5
Manager to conduct its operations, the cost of such permits, certificates and licenses shall be at
Property Manager's sole expense and not an expense paid out of revenues from the
Development.
(i) Legal Actions. Any proposed legal action in connection with a tenant,
including actions to evict tenants in default and to recover possession of such tenants' premises,
shall be referred to the City Attorney's office acting as general counsel for ARRA for review and
handling. Property Manager shall have no right to settle, compromise or release such actions or
suits or reinstate such tenancies without prior written approval of ARRA and the City Attorney.
(j) Notices. Property Manager shall promptly deliver to ARRA all notices
received from any contractor, subcontractor, governmental or official entity, any tenant or any
other party with respect to the Development. Property Manager may sign and serve in the name
of ARRA any and all notices required in connection with the proper performance by Property
Manager of the Property Management Services.
(k) Notices of Claim of Injury or Damage. Property Manager shall notify the
ARRA of any personal injury or property damage occurring to, or claimed by, any tenant or third
party on or with respect to the Development promptly upon obtaining actual knowledge thereof
and to promptly forward to ARRA any summons, subpoena, or legal document served upon the
Property Manager relating to actual or alleged potential liability of the ARRA, the Property
Manager or the Development within two (2) business days.
(1) Cooperation. Property Manager shall give ARRA all pertinent
information and reasonable assistance in the defense or disposition of any claims, demands, suits
or other legal proceedings which may be made or instituted by any third party. against ARRA
which arise out of any matters relating to the Development, this Agreement or Property
Manager's performance hereunder.
(m) Leasing. Property Manager shall provide those services set forth in
Exhibit B attached to and made a part of this Agreement, in connection with the marketing and
leasing of the premises within the Development and shall receive, in consideration therefor, the
leasing commissions specified in Exhibit B. Notwithstanding anything to the contrary contained
in Exhibits A -1, Part 1; A -1, Part 2; A -2; or A -3, all leases must be executed by ARRA, or the
Executive Director of ARRA, subject to such limitations as may be established by ARRA.
(n) Tenant Relations. Property Manager shall make itself fully familiar with
the terms and provisions of all leases for space within the Development, shall perform all
delegable duties of ARRA as landlord under each such lease, so that such lease shall remain in
full force and effect, with no default by ARRA, and shall enforce the full performance of all
obligations of the tenant under each such lease. Property Manager shall maintain business -like
relations with tenants, receive requests, complaints and the like from tenants and respond and act
upon the foregoing in reasonable fashion. To insure full performance by tenants of all of their
obligations, Property Manager shall inspect the Development at least monthly, and, if
appropriate, shall make demands on any tenants who have not performed such obligations to do
so. Property Manager shall notify all tenants of all rules, regulations, and notices as may be
promulgated by ARRA, governing bodies and insurance carriers. If a lease with any tenant
6
requires that the tenant maintain any insurance coverage, Property Manager shall obtain
insurance certificates and endorsements from such tenant evidencing compliance with the lease
terms, and shall promptly notify ARRA if it is unable to obtain such certificates.
(o) Taxes and Assessments. Property Manager, at ARRA's request, agrees to
annually review, and submit a report on all real estate and personal property taxes and
assessments affecting the Development (and if so requested, Property Manager may engage
outside consultants at ARRA's expense with ARRA's prior written approval) and to initiate and
pursue appeals of same, if so directed by ARRA.
(p) Inventories and Supplies. Property Manager agrees to supervise and
purchase, or arrange for the purchase, in an economical manner, of all inventories, provisions,
supplies and operating equipment which, in the normal course of business, are necessary and
proper to maintain and operate the Development in a first -class manner.
(q) Hours. At all times during normal business hours, Property Manager
agrees to be available to, or cause a representative of Property Manager to be available to,
tenants in the Development.
(r) Inspections. Property Manager shall perform periodic comprehensive
inspections of the Development, and report on such inspections to ARRA at least annually. In
addition, Property Manager shall inspect all exterior areas of the Development for safety hazards
on a monthly basis and shall report on such inspections to ARRA. Property Manager shall
initiate and maintain a sidewalk inspection and maintenance program and shall perform all
inspection and reporting services with respect to sidewalks in accordance with such program and
as more particularly set forth in the Annual Management Plan. Property Manager shall also
inspect all premises upon termination of leases, and shall inspect the roofs of buildings within the
Development on a periodic basis as specified by ARRA.
(s) Assistance with Proposed Sale, Financing, Refinancing. Property
Manager agrees to cooperate with, and assist ARRA in any attempt by ARRA to sell, finance or
refinance the Development without such cooperation giving rise to compensation. Such
cooperation shall include, without limitation, answering prospective purchasers' or lender(s)'
questions about the Development or tenant leases, notifying tenants about the sale of the
Development, and obtaining estoppel certificates. When requested by ARRA, Property Manager
shall prepare a list of all personal property owned by ARRA and used at the Development or in
its operation. Upon request, Property Manager shall diligently seek to obtain lease estoppel
certificates (on a form approved by ARRA) from tenants for the benefit of ARRA and /or any
proposed purchaser and/or mortgagee.
(t) Residential Management Agreement. The Property Manager shall be
responsible for overseeing and administering the existing residential management agreement (the
"Residential Management Agreement ") with Gallagher & Lindsey (the "Residential Property
Manager "), for the purpose of contracting for certain management services for the Residential
Area. During the teen of the Residential Management Agreement, the Property Manager would
not perform Property Management Services for the Residential Area, but would be obligated to
oversee and administer the Residential Management Agreement. At all times following
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execution of this Agreement, the Property Manager shall be responsible for the performance of
the Residential Management Agreement and ARRA shall have the right to enforce the
obligations of the Property Manager for the Residential Area directly against the Property
Manager. It shall be the Property Manager's responsibility to enforce the terms of the
Residential Management Agreement against the Residential Property Manager. ARRA shall
have the right to approve any new Residential Management Agreement and Residential Property
Manager and to the extent deemed necessary or appropriate by either party hereto, the provisions
of this Agreement shall be amended accordingly. All costs and expenses, including any fee paid
to the Residential Property Manager, shall be passed through to ARRA and the Property
Manager will not be entitled to additional compensation or any override with respect to the
Residential Management Agreement. In no event will ARRA be obligated for compensation for
management services for the Residential Area that would exceed the amounts currently paid to
the existing residential Property Manager unless otherwise expressly approved in writing by
ARRA.
(u) Port Service Agreement. Following execution of this Agreement,
Property Manager shall oversee and administer the existing agreement ( "Harbor Management
Agreement ") with Trident Management ( "Harbor Property Manager "). ARRA shall have the
right to approve any new Harbor Management Agreement and Harbor Property Manager and to
the extent deemed necessary or appropriate by either party hereto, the provisions of this
Agreement shall be amended accordingly. The Property Manager will not be entitled to
additional compensation or any override with respect to the Harbor Management Agreement. In
no event will ARRA be obligated to pay amounts for services under the Harbor Management
Agreement in excess of the amounts currently being paid to the Harbor Property Manager unless
otherwise expressly approved in writing by ARRA. At all times following execution of this
Agreement, ARRA shall have the right to enforce obligations under the Harbor Management
Agreement directly against the Property Manager and it shall be the Property Manager's
responsibility to enforce the terms of the Harbor Management Agreement against the Harbor
Property Manager.
ARTICLE II
ARRA RIGHTS AND OBLIGATIONS
Section 2.1 Development Materials in Possession of ARRA. Property Manager
acknowledges and agrees that it has all documents and information required for the management
of the Development including, but not limited to, all leases, amendments and correspondence
related thereto, the status of rental payment, copies of service contracts in effect, and all
applicable insurance policies. Upon Property Manager's request, ARRA shall provide any
additional such documents it may have in its possession.
Section 2.2 Approval of Contracts. Notwithstanding any term or provision of this
Agreement to the contrary, except in the case of an emergency situation involving danger to
persons or property, or as otherwise approved by ARRA, no contract or agreement for
equipment, supplies, services or any other item shall be entered into by "PM Realty Group, L. P.
as agent for Alameda Reuse and Redevelopment Authority" or by Property Manager, in its name,
on behalf of ARRA, unless Property Manager shall have first complied with, or used a
procurement process consistent with, ARRA's procurement policies applicable to equipment,
supplies and materials, a copy of which has been furnished to Property Manager, or in the case of
services, Property Manager shall have first obtained and submitted to ARRA three competitive,
written bids for the performance or furnishing of the same, and ARRA shall have approved the
awarding of such contract or agreement. However, without such bidding and consent, Property
Manager may enter into contracts and agreements, in its name, on behalf of ARRA, or as "PM
Realty Group, L. P. as agent for Alameda Reuse and Redevelopment Authority," in the ordinary
course of the management, operation, maintenance and servicing of the Development, such as,
for example, involving the provision of utility, maintenance or other services or the furnishing of
services to tenants in the Development, provided that such contract or agreement has already
been approved in an Annual Management Plan. All service contracts shall contain a provision
permitting ARRA to terminate such contracts and shall comply with the provisions of Section
1.3(f) above. Notwithstanding any other provision of this Agreement to the contrary, in no event
shall Property Manager enter into, on behalf of ARRA, any agreement with Property Manager
(including "PM Realty Group, L. P. as agent for Alameda Reuse and Redevelopment Authority ")
and /or any affiliate of Property Manager without the prior written consent of ARRA, which
consent shall specifically reference the affiliation of Property Manager with the contracting
party.
Section 2.3 On -Site Development Office. If the professional management of the
Development requires such facilities or space, ARRA agrees to provide facilities or space in the
Development suitable for the discharge of the Property Manager's duties under this Agreement,
and ARRA agrees to assume the expense incurred in connection therewith.
Section 2.4 ARRA's Representative. For the purposes of administering this
Agreement, Property Manager shall communicate with and take direction from ARRA's
representative, Nanette Banks, in connection with Property Manager's performance of its
obligations under this Agreement.
ARTICLE III
BUDGETS AND REPORTS
Section 3.1 Annual Management Plan; Budget. Property Manager acknowledges that
the fiscal year for ARRA and the City is July 1 -June 30. No later than May 1st of each year, or
such other date specified in a written notice from ARRA to Property Manager, Property Manager
shall submit to ARRA, for ARRA's written approval (which shall not be unreasonably withheld),
proposed budgets, operating plans and leasing plans (the "Annual Management Plan ") for each
building comprising the Development and for the Development as a whole, and a description of
the Property Management Services to be provided by Property Manager during next fiscal year.
Property Manager shall provide such other financial data and other information as may be
required by ARRA in connection with the preparation of its annual business plan or which may
otherwise be reasonably requested by ARRA. The first Annual Management Plan dated
has been delivered to ARRA for review and approved by ARRA prior to the
date of this Agreement. The initial budget for the first Annual Management Plan is attached
hereto as Exhibit C.
Section 3.2 Compensation for Property Management Services. ARRA shall pay to
Property Manager as compensation for performing the Property Management Services in
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furtherance of the redevelopment, reuse and further development of the Development amounts
budgeted for costs and expenses of all services provided under this Agreement, including those
costs and expenses which are specifically reimbursable pursuant to Section 4.1 below, in
accordance with the budget attached hereto as Exhibit C, as such budget may be adjusted
pursuant to Section 3.3 below. The line item on Exhibit C listed as the "Off -Site Management
Fee" shall be paid monthly, in arrears, within fifteen (15) days following the end of each
calendar month.
Section 3.3 Budget Adjustment. The initial budget for the first Annual Management
Plan attached hereto as Exhibit C may be adjusted on an annual basis as follows:
(a) If the Property Manager desires to adjust the budget shown on Exhibit C,
the Property Manager shall send written notice (the "Budget Adjustment Request ") to ARRA no
later than April 1. The Budget Adjustment Request shall include the proposed budget
adjustments. In no event shall such adjustments collectively exceed three percent (3 %) of the
prior year's annual budget.
(b) The parties hereto agree to negotiate in good faith any such budget
adjustments requested in the Budget Adjustment Request for a period not to exceed June 1 of the
same year of the Budget Adjustment Request.
(c) If the parties hereto either (i) do not reach agreement regarding the
requested budget adjustments, or (ii) if ARRA does not approve the requested budget
adjustments by July 1 of the same year as the Budget Adjustment Request, then the annual
budget shall not be adjusted and shall be the same as the annual budget approved and in place at
the time the Budget Adjustment Request was received by ARRA.
Section 3.4 Monthly Reports. On or before the fifteenth (15th) day of each calendar
month, Property Manager shall deliver to ARRA, for each building comprising the Development,
and also for the Development as a whole, the following reports, for the preceding month:
(a) Accounting. A cash flow operating statement, a funds from operations
statement (cash basis), an income statement (cash basis), a balance sheet (cash basis) and a
statement of cash flows. Such statements shall present the results of operations of each building
and the Development as a whole for the preceding calendar month and for the year -to -date.
(b) Rent Roll and Accounts Receivable Aging Reports. Reports setting forth
a rent roll, presentation rent roll, tenant delinquencies and the aging of accounts payable.
(c) Inspection Reports. A report of all significant and material findings, if
any, of Property Manager's inspections of tenants' premises pursuant to this Agreement.
(d) Capital Expenditure Reports. Reports providing details of capital
expenditures, including tenant improvements, for the preceding month and for the remainder of
the calendar year, itemized by type of capital expenditure.
(e) Updated Forecast. A statement setting forth in detail the estimated
revenues, expenses, capital expenditures, for each of the remaining months of the calendar year.
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Property Manager shall also set forth on a monthly basis the estimated cash flow to ARRA.
(f) Book and Tax Projections. If requested by ARRA (at ARRA's cost),
projections of the current year's net income or loss on a book and tax basis, together with
statements supporting the calculation of these projections. ARRA will notify Property Manager
of the specific date on which the Projections are due.
(g) Receivables Aging Reports. A list of all accounts receivable outstanding
as of the end of the preceding month, specifying the amount due, the nature of the receivable, the
person or entity from whom due, the age of the receivable and a summary of collection efforts to
date.
(h) Bank Reconciliation. A reconciliation for each of ARRA's bank accounts
related to the Development of the activity in such account for the preceding month and for the
year -to -date.
Section 3.5 Annual Reports. Within forty -five (45) days after the end of each calendar
year, Property Manager shall deliver to ARRA a cash flow operating statement, a funds from
operations statement (cash basis), an income statement (cash basis), a balance sheet (cash basis)
and a statement of cash flows, each for or as of the end of the immediately preceding year.
Section 3.6 Format. At ARRA's request, Property Manager shall make available to
ARRA all reports required hereunder in an electronic format reasonably acceptable to ARRA
and compatible with ARRA and the City's computer system and software. Reports shall be
substantially in the format set forth in Annual Management Plan, provided that ARRA may
request changes from time to time. All reports required to be provided by this Agreement shall
be printed on recycled paper.
Section 3.7 Use of Reports. All reports prepared by Property Manager may be used
by ARRA or the City in execution or implementation of:
(a) The original services for which Property Manager was hired;
(b) Continuation of the services by others;
(c) Subsequent additions to the original services; and /or
(d) Other services being furnished to ARRA or the City, as the City and
ARRA deem appropriate.
Section 3.8 No Distribution Without Approval. No report, information or other data
given to or prepared or assembled by Property Manager pursuant to this Agreement shall be
made available to any individual or organization by Property Manager without prior approval by
ARRA.
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ARTICLE IV
EXPENSES
Section 4.1 Expense of ARRA. All payments made, or expenses incurred, by the
Property Manager in the performance of the Property Management Services shall be paid or
reimbursed by ARRA, except as otherwise provided in this Agreement or the Annual
Management Plan. Both parties acknowledge that ARRA shall not be obligated to pay or
reimburse the Property Manager for any expenses incurred by the Property Manager in
connection with the leasing of premises within the Development, or for office equipment, office
supplies of the Property Manager postage or overnight delivery costs, for any general overhead
expense of the Property Manager (other than on -site reimbursable expenses shown on the budget
attached hereto as Exhibit C), or for any salaries of those employees and /or agent types (other
than those identified on Exhibit C attached hereto), and all such employees shall be compensated
directly by the Property Manager. The employee and /or agent types identified on Exhibit C
attached hereto ( "Reimbursable Employees ") shall be subject to the obligation of ARRA to
reimburse the Property Manager for such salaries in accordance with the provisions of the
Annual Management Plan and not to exceed the budget attached hereto as Exhibit C, as such
budget may be adjusted pursuant to Section 3.3 above.
Section 4.2 Payment by the Property Manager. Subject to Section 4.3 below, without
the necessity of obtaining the prior written consent of ARRA, the Property Manager shall make
all payments for repairs and maintenance costs incurred and equipment and supply purchases
made in accordance with this Agreement, and under contracts existing prior to the effective date
of this Agreement or approved or authorized pursuant to this Agreement, but only if such
payments (a) will not cause the annual expenditure under a budget line item to exceed the
approved budget (as set forth in the Annual Management Plan) by the lesser of Five Thousand
and No /100ths Dollars ($5,000.00) or ten percent (10 %) or more of the amount of such budget
line item, and (b) will not, as a result of actual savings to date in other budget line items, cause
the total projected annual expenditures to exceed the approved budget. However, in the case of
casualty, breakdown in machinery or other similar emergency, the Property Manager may make
reasonable payments for repairs, maintenance, equipment or supplies in excess of such
authorization amounts if, in the reasonable opinion of the Property Manager, emergency action
prior to written approval is necessary to prevent additional damage or a greater total expenditure,
to protect the Development from damage or to prevent a default on the part of ARRA as landlord
under a lease, but in no event shall the Property Manager be authorized to expend more than Five
Thousand and No /100ths Dollars ($5,000.00). In such cases, such authority shall terminate upon
the cessation of the emergency and the Property Manager shall notify ARRA of the expenditure
within two (2) days after such expenditure.
Section 4.3 Use of Proceeds. The Property Manager acknowledges receipt from
ARRA of a copy of Article 6 "Use of Proceeds from Sale or Lease" of the NAS Economic
Development Conveyance Agreement executed between ARRA and the Navy for the Site
( "EDC "). ARRA and the Property Manager both acknowledge and agree that the revenues from
the Development shall be applied for the allowable uses in compliance with Sections 6(a) and
6(b) of the EDC.
Section 4.4 Source of Payment. Any authorized payments made by the Property
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Manager on behalf of ARRA shall only be made out of such funds as the Property Manager may
from time to time hold for the account of ARRA or as may be provided by ARRA.
ARTICLE V
NONDISCRIMINATION AND EQUAL OPPORTUNITY
Section 5.1 Nondiscrimination. Neither ARRA, Property Manager nor anyone
authorized to act for any of them, shall, in the rental, lease or sale, in the provision of service, or
in any other manner, discriminate against any person on the grounds of race, color, creed,
religion, handicap, sex or national origin, and Property Manager hereby agrees to comply with
all laws, regulations and ordinances pertaining thereto.
Section 5.2 Equal Opportunity. Property Manager is an equal opportunity non-
discriminatory employer. Property Manager and ARRA each mutually agree that there shall be
no discrimination against, or segregation with respect to any person or of a group of persons on
account of race, color, religion, creed, sex, or national origin in leasing, transferring, use,
occupancy, tenure or enjoyment of the Development, nor shall ARRA or Property Manager
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants.
ARTICLE VI
INDEMNIN'ICATION
Property Manager shall indemnify, defend and hold harmless ARRA, the City, its City
Council, Alameda Power and Telecom, the Alameda Housing Authority, the Community
Improvement Commission, and their boards, councils, commissions, officials, employees and
volunteers (collectively, "Indemnitees ") from and against any and all loss, damages, liability,
claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees (collectively,
"Claims "), regardless of the merits or outcome of any such Claim, arising from or in any manner
(a) connected to Property Manager's negligent act or omission, whether alleged or actual,
regarding performance of services or work conducted or performed pursuant to this Agreement
or any acts beyond the scope of Property Manager's authority hereunder, or (b) accruing to or
resulting from any and all persons, firms or corporations furnishing or supplying work, services,
materials, equipment or supplies arising from or in any manner connected to Property Manager's
negligent act or omission regarding performance of services or work conducted or performed
pursuant to this Agreement or any acts beyond the scope of Property Manager's authority
hereunder. If Claims are filed against Indemnitees which allege negligence on behalf of the
Property Manager, Property Manager shall have no right of reimbursement against Indemnitees
for the costs of defense even if negligence is not found on the part of Property Manager.
However, Property Manager shall not be obligated to indemnify Indemnitees from Claims
arising from the sole or active negligence or willful misconduct of Indemnitees. The foregoing
indemnities shall survive termination of this Agreement.
ARTICLE VII
INSURANCE
Section 7.1 Liability Coverages. Property Manager, at its cost, shall maintain, or
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cause to be maintained, the following insurance coverage during the term of this Agreement:
(a) Comprehensive, broad form general liability insurance, in an amount not
less than Six Million Dollars ($6,000,000), combined single limit. At least $1,000,000 shall be
primary and the remainder may be maintained, as applicable, as umbrella or excess liability
coverage.
(b) Automobile liability insurance for owned, hired or non -owned vehicles, in
an amount not less than One Million Dollars ($1,000,000), combined single limit.
(c) Workers' compensation, as required by law, and employer's liability in an
amount not less than One Million Dollars ($1,000,000).
(d) Two Million Dollars ($2,000,000) of professional liability insurance for
errors and omissions for the professional acts, errors and omissions of Property Manager or its
employees and agents related to any services performed by Property Manager hereunder
requiring a real estate broker's license.
(e) Property Manager shall not undertake or permit to be undertaken any
construction involving heavy equipment, such as grading or eartlunoving equipment, without
prior approval of ARRA, which may be conditioned upon requiring additional insurance from
Property Manager or the contractor or subcontractor performing the work.
(f) With respect to construction in the Development other than as described in
Subsection (e) above, Property Manager shall cause the construction contractors and
subcontractors to provide the following insurance coverages:
(i) The construction contractor shall provide ARRA's protective
coverage, in an amount not less than Three Million Dollars ($3,000,000), combined single limit
(ii) Comprehensive, broad form general liability insurance, including
products and completed operations, in an amount not less than One Million Dollars ($1,000,000),
combined single limit. If such insurance is provided under a blanket policy, a separate general
liability and completed operations aggregate limit shall apply to the Development. The
completed operations coverage shall be maintained for at least two (2) years following
completion of construction.
(iii) Liability insurance for owned, hired and non -owned vehicles, in an
amount not less than Five Hundred Thousand Dollars ($500,000), combined single limit.
(iv) Workers' compensation, as required by law, and employer's
liability in an amount not less than One Million Dollars ($1,000,000).
(g) Property Manager shall also cause contractors and subcontractors to
maintain, as applicable, umbrella, or excess liability, coverage, in an amount not less than Three
Million Dollars ($3,000,000) unless the City's Risk Manager expressly approves in writing lesser
amounts. Such insurance shall be in excess of all liability coverages required in the above
subsections to be maintained by the contractors and subcontractors.
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(h) To the extent Property Manager is directly or indirectly involved in any
type of excavation at Alameda Point, it must obtain prior written approval of ARRA, which may
condition such approval on requiring pollution legal liability insurance in an amount to be
determined by ARRA based on the scope of work.
Section 7.2 General Requirements.
(a) Required Provisions. All insurance policies required under this Article VI
other than workers' compensation and professional liability insurance for errors and omissions
shall (i) name ARRA and all other parties specified in Section 7.2(f) below as additional
insureds, (ii) be issued by an insurer and be in a form and contain terms, all as reasonably
approved by ARRA and the City's Risk Manager, (iii) provide that such policies shall not be
canceled nor shall any material change be made therein without at least thirty (30) days' prior
written notice to ARRA, and (iv) provide that any loss shall be payable to ARRA and any other
additional named insured specified in Section 7.2(f) below notwithstanding any act or negligence
of Property Manager which might otherwise result in forfeiture of such insurance.
(b) Rating. All insurers providing the coverages specified in this Article VI
shall be rated A -VII or better by Best's and shall otherwise be subject to the prior approval of the
City's Risk Manager.
(c) Certificates of Insurance. On or before the commencement of the term of
this Agreement, Property Manager shall furnish ARRA and the City with certificates showing
the type, amount, class of operations covered, effective dates and dates of expiration of insurance
coverage in compliance with this Agreement. Such certificates, which do not limit Property
Manager's indemnification, shall also contain substantially the following statement: "Should
any of the above insurance covered by this certificate be canceled or coverage reduced before the
expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance
written notice to the City of Alameda by certified mail, Attention: Risk Manager." It is agreed
that Property Manager shall maintain in force at all times during the performance of this
Agreement all appropriate coverage of insurance required by this Agreement with an insurance
company or companies licensed to do insurance business in the State of California and domiciled
in the United States of America. Endorsements naming the additional insureds specified in
Section 7.2(f) below shall be submitted with the insurance certificates. Property Manager shall
also provide ARRA with certificates evidencing and further insurance coverages required by this
Article VI (whether maintained by Property Manager or by contractors and subcontractors) prior
to the commencement of any activity or operation which could give rise to a loss to be covered
by such insurance. Replacement certificates shall be sent to the City's Risk Manager as policies
are renewed, replaced or modified.
(d) Investigation of Claims. Property Manager shall promptly report any
conditions or incidents of which Property Manager becomes aware which could give rise to a
claim or lawsuit against ARRA or involving the Development. Property Manager shall promptly
investigate and make a full, timely, written report to any insurance company providing coverage,
with a copy to ARRA and the City's Risk Manager, of all accidents, claims, or damage relating
to the ownership, operation and maintenance of the Development, any damage or destruction to
the Development and the estimated cost of repair thereof, and shall prepare any and all further
15
reports required by any such insurance company in connection therewith. Property Manager
shall have no right to settle, compromise or otherwise dispose of any claims, demands or
liabilities, whether or not covered by insurance, without the prior written consent of ARRA and
the City's Risk Manager.
(e) Failure to Secure. If Property Manager at any time during the term hereof
should fail to secure or maintain the foregoing insurance, ARRA shall be permitted to obtain
such insurance in Property Manager's name or as an agent of ARRA and shall be compensated
by Property Manager for the costs of the insurance premiums at the maximum rate permitted by
law and computed from the date written notice is received that the premiums have not been paid.
(f) Additional Insureds. ARRA, the City, the City Council, Alameda Power
and Telecom, Alameda Housing Authority, and the Community Improvement Commission and
their respective boards, commissions, officers, employees and agents shall be named as
additional insureds under all insurance coverages required by this Agreement except the
Workers' Compensation coverage and professional liability insurance . The naming of an
additional insured shall not affect any recovery to which such additional insured would be
entitled under this policy if not named as such additional insured. An additional insured named
herein shall not be held liable for any premium, deductible portion of any loss, or expense of any
nature on this policy or any extension thereof. The insurance Property Manager is required to
carry or cause to be carried under this Agreement shall be primary. Any other insurance held by
an additional insured shall not be required to contribute anything toward any loss or expense
covered by the insurance required to be provided by this Agreement.
(a) Deductibles. All deductibles shall be subject to the approval of the
City's Risk Manager. No self - insured retentions shall be permitted.
(b) Subrogation Waiver. Property Manager agrees that in the event of
loss due to any of the perils for which Property Manager has agreed to provide comprehensive
general and automotive liability insurance, Property Manager shall look solely to Property
Manager's insurance for recovery. Property Manager hereby grants to the City and ARRA, on
behalf of any insurer providing comprehensive general and automotive liability insurance to
either Property Manager or the City or ARRA with respect to the services of Property Manager
herein, a waiver of any right to subrogation which any such insurer of Property Manager may
acquire against the City or ARRA by virtue of the payment of any loss under such insurance.
(c) Sufficiency of Insurance. The insurance limits required by ARRA
or the City are not represented as being sufficient to protect Property Manager. Property
Manager is advised to confer with Property Manager's insurance broker to determine adequate
coverage for Property Manager.
ARTICLE VIII
TERM AND TERMINATION
Section 8.1 Term. The term of this Agreement commenced on the Effective Date, and
shall continue until , 200_, unless sooner terminated in accordance with its terms.
Subject to termination pursuant to Sections 8.2 or 8.3 below, this Agreement shall be
16
automatically renewed for similar terms at the expiration of each preceding year unless one party
notifies the other, in writing within ninety (90) days prior to the renewal date, that it elects not to
renew. Upon any termination of this Agreement by ARRA or Property Manager, with or without
cause, Property Manager shall be entitled only to the fees and reimbursement which have
accrued hereunder but have not yet been paid through the effective date of termination.
Section 8.2 Termination by ARRA.
(a) For Cause. ARRA may terminate this Agreement, effective immediately
upon receipt by Property Manager of written notice of ARRA's election to do so, if:
(i) In ARRA's reasonable judgment, Property Manager has
mismanaged the Development or has been negligent in the management, operation, maintenance
or servicing of the Development or has otherwise defaulted in the performance of its obligations
hereunder, and has not remedied or cured the facts giving rise to ARRA's right to terminate
under this subsection within thirty (30) days after receipt of written notice from ARRA
specifying such facts;
(ii) A receiver, liquidator, or trustee of Property Manager shall be
appointed by court order, or a petition to liquidate or reorganize Property Manager shall be filed
against Property Manager under any bankruptcy, reorganization, or insolvency law and such
order or petition is not vacated or dismissed within sixty (60) days, or Property Manager shall
file a petition in bankruptcy or request a reorganization under any provision of the bankruptcy,
reorganization, or insolvency laws, or if Property Manager shall make an assignment for the
benefit of its creditors, or if Property Manager is adjudicated a bankrupt;
(iii) There is damage or destruction to the Development and ARRA
elects not to rebuild or restore the Development;
(iv) Property Manager fails to make payment of any amounts payable
to ARRA on the due dates set forth hereunder; provided that such failure shall not be an event of
default if Property Manager makes such payment within seven (7) days after notice from ARRA
of such failure, but Property Manager shall not be entitled to such seven (7) days' notice more
than twice in any twelve month period.
(b) Without Cause. Upon ninety (90) days' written notice to Property
Manager, ARRA may terminate this Agreement at any time, in its sole discretion, without cause
of any kind.
(c) Termination of LIFOC. This Agreement shall terminate immediately if
ARRA no longer has a right to use and possess the Site by termination of the LIFOC or for any
other reason except as a result of conveyance of the Site to ARRA.
Section 8.3 Termination by Property Manager.
(a) For Cause. Property Manager may terminate this Agreement, by written
notice to ARRA, if ARRA has defaulted in its obligations hereunder, and has not cured such
default within thirty (30) days after receipt of written notice from Property Manager specifying
17
such default.
(b) Without Cause. Upon ninety (90) days' written notice to ARRA, Property
Manager may terminate this Agreement at any time, in its sole discretion, without cause of any
kind.
Section 8.4 Manager's Obligations after Termination. Upon the expiration or
iination of this Agreement pursuant to Sections 8.2 or 8.3 of this Agreement, Property
Manager shall:
(a) deliver to ARRA, or to such other person or persons designated by ARRA,
copies of all books and records of the Development and all funds in the possession of Property
Manager belonging to ARRA or received by Property Manager pursuant to the terms of this
Agreement;
(b) deliver to ARRA any and all funds of ARRA on hand or in any bank
account, including all security deposits of tenants, if not previously delivered to ARRA, less any
unpaid compensation due to Property Manager pursuant to this Agreement, and less any other
reimbursements due to Property Manager under this Agreement;
(c) deliver to ARRA, as received, any funds due to ARRA under this
Agreement but received after such termination;
(d) deliver to ARRA all materials, supplies, keys, contracts, documents, plans,
specifications, promotional materials and other materials pertaining to the Development; and
(e) assign, transfer or convey to such person or persons all service contracts
and personal property relating to or used in the operation and maintenance of the Development,
except any personal property which was paid for and is owned by Property Manager. Property
Manager shall, at its cost and expense, remove all signs that it may have placed at the
Development indicating that it is Property Manager of the Development and repair and restore
any damage resulting therefrom. Property Manager shall also, for a period of ninety (90) days
after such expiration or termination, make itself available to consult with and advise ARRA, or
such other person or persons designated by ARRA, regarding the operation and maintenance of
the Development.
ARTICLE IX
ASSIGNMENT
Section 9.1 Personal Services. This Agreement is a contract for the personal services
of Property Manager, and Property Manager may not assign, hypothecate, or transfer this
Agreement or any interest therein directly or indirectly, by operation of law or otherwise without
ARRA's prior written approval, which may be withheld in the sole discretion of ARRA. ARRA
shall not be required to accept performance hereunder by any person other than Property
Manager, including without limitation, Property Manager as debtor in possession under the
Bankruptcy Code, any trustee of Property Manager appointed under the Bankruptcy Code, or any
assignee of such trustee or of Property Manager.
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Section 9.2 Property Manager Identity. For purposes of this Agreement, any change
in the constituent entities comprising Property Manager as of the Effective Date shall be deemed
to be an assignment requiring the approval of ARRA in its sole discretion.
Section 9.3 Binding. Without derogating from the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their respective successors
and assigns.
ARTICLE X
NOTICES
Section 10.1 Notices. Unless otherwise specifically provided, all notices, demands,
statements and communications required hereunder shall be in writing and shall be delivered in
person or sent by registered or certified mail, postage prepaid, or by Federal Express or similar
overnight courier, if intended for ARRA, addressed to ARRA at:
Alameda:
With copies to:
City of Alameda
2263 Santa Clara Avenue
Alameda, California 94501
Attention: City Manager
City of Alameda
2263 Santa Clara Avenue
Alameda, California 94501
Attention: City Attorney
Alameda Point Development Services
950 West Mall Square
Alameda, CA 94501 -2272
Attention: Manager, Base Reuse
and if intended for Property Manager, addressed to Property Manager at:
PM Realty Group, L.P.
910 Travis, Suite 1000
Houston, TX 77002
Attention: Rick Kirk, President and CEO
or to such other address as shall, from time to time, have been designated by written notice by
either party to the other party as herein provided. Unless otherwise specified herein, such
notices, demands, statements and communications shall be deemed received (a) on the date
delivered (or the date delivery is refused) if delivered in person; (b) three (3) business days after
being deposited with the U.S. Mail, if sent by registered or certified mail, postage prepaid, or (c)
one (1) business day after being sent, if sent by Federal Express or similar overnight courier.
19
ARTICLE XI
MISCELLANEOUS
Section 11.1 Entire Agreement. This Agreement is the entire agreement between the
parties with respect to the subject matter hereof, and no alteration, modification or interpretation
hereof shall be binding unless in writing and signed by both parties.
Section 11.2 Severability. If any provision of this Agreement or application to any
party or circumstances shall be determined by any court of competent jurisdiction to be invalid
or unenforceable to any extent, the remainder of this Agreement or the application of such
provision to such person or circumstances, other than those as to which it is so determined
invalid or unenforceable, shall not be affected thereby, and each provision hereof shall be valid
and shall be enforced to the fullest extent permitted by law.
Section 11.3 Applicable Law. This Agreement shall be construed in accordance with
the laws of the State of California. Any suits brought pursuant to this Agreement shall be filed
with the Courts of the County of Alameda, State of California.
Section 11.4 Authority Limited. Property Manager's authority shall be derived wholly
from this Agreement, and Property Manager has no authority to act for or represent ARRA
except as herein specified.
Section 11.5 Exclusiveness of Compensation. The payments to be made to Property
Manager hereunder shall be in lieu of all other and further compensation or commissions of any
nature whatsoever for the services described herein and this Agreement shall be considered as a
special agreement between the parties hereto covering the appointment and compensation of
Property Manager to the exclusion of any other method of compensation unless otherwise agreed
to in writing.
Section 11.6 Independent Contractor. Property Manager is an independent contractor
and, as such, shall be solely responsible for all of its employees, for the supervision of all persons
performing services in connection with the performance of all of ARRA's obligations relating to
the maintenance and operation of the Development, and for determining the manner and time of
performance of all acts hereunder. Nothing herein contained shall be construed to establish
Property Manager as an agent of ARRA beyond the scope of authority expressly granted
hereunder, or to create a joint venture or partnership between Property Manager and ARRA. No
civil service status or other right of employment will be acquired by any person by virtue of
Property Manager's services pursuant to this Agreement. None of the benefits provided by the
City or ARRA to their employees, including but not limited to, unemployment insurance,
workers' compensation plans, vacation and sick leave are available to Property Manager, its
employees, independent contractors or agents. Deductions shall not be made for any state or
federal taxes, FICA payments, PERS payments, or other purposes normally associated with an
employer- employee relationship from the compensation due Property Manager under this
Agreement. Payments of the above items, if required to or on behalf of any individual providing
services under this Agreement, are the responsibility of Property Manager.
Section 11.7 Transactions With Affiliates. Notwithstanding anything to the contrary
20
contained in this Agreement, Property Manager shall not enter into or advise ARRA to enter
into, any agreement or arrangement with Property Manager or any party affiliated with Property
Manager, directly or indirectly at ARRA's expense or directly or indirectly on behalf of ARRA,
without the written notification of ARRA. The provisions of this Section 11.7 are not intended
to limit the fiduciary duties of Property Manager to ARRA contained in this Agreement or under
common law.
Section 11.8 Limitation on Liability. Property Manager agrees that the obligations
incurred by ARRA under this Agreement shall not constitute personal obligations of the
employees, or any other principals or representatives of ARRA. Property Manager further
agrees that its recourse against ARRA under this Agreement shall be strictly limited to ARRA's
interest in the Development, and that Property Manager shall have no recourse to any other asset
of ARRA, or any other principal or representative of ARRA for the satisfaction of any of
ARRA's obligations hereunder.
Section 11.9 Consents and Approvals. To be effective, consents and approvals of
ARRA shall be in writing. All such requests shall be directed to the City Manager or such
representative as the City Manager shall have designated in writing ( "Designated ARRA
Representative "), and approvals from such person shall constitute the approval of ARRA.
Section 11.10 Disclosure. Property Manager shall disclose to ARRA for ARRA's
reasonable approval of any controlling ownership interest of Property Manager, any officer or
employee of Property Manager, or any immediate family member (parent or parent -in -law,
spouse, child, brother, sister, brother -in -law or sister -in -law or step - parent), of any officer or
employee of Property Manager in any corporation, partnership, joint venture or other business
which provides materials, products or services, directly or indirectly, for the Development. Such
disclosure shall be made to ARRA, in writing, at least ten (10) days prior to the proposed
entering into any contract or agreement with such business for the provision of such products,
materials, or service.
Section 11.11 Time. Time is of the essence with respect to this Agreement.
Section 11.12 Confidentiality Clause. Property Manager shall not reveal proprietary
information with respect to ARRA or ARRA's properties, other than required by law, without
prior written approval by ARRA.
Section 11.13 Waiver. No waiver by any party of any of the provisions of this
Agreement shall be effective unless in writing and signed by the party granting the waiver, and
only to the extent expressly provided in such written waiver. Further, the failure of ARRA to
seek redress for breach, or to insist upon the strict performance of any covenant, agreement,
provision or condition of this Agreement, shall not constitute a waiver thereof, and ARRA shall
have all remedies provided herein and by applicable law with respect to any subsequent act
which would have originally constituted a breach.
Section 11.14 Captions. The captions of this Agreement are inserted only for the
purpose of convenient reference and do not define, limit or prescribe the scope or intent of this
Agreement or any part hereof.
21
Section 11.15 Conflict of Interest. Property Manager warrants that is not a conflict of
interest for Property Manager to perform the services required by this Agreement. Property
Manager may be required to fill out a conflict of interest form if the services provided under this
Agreement require Property Manager to make certain governmental decisions or serve in a staff
capacity as defined in Title 2, Division 6, Section 18700 of the California Code of Regulations.
Section 11.16 Immigration Reform and Control Act. Property Manager assumes any and
all responsibility for verifying the identity and employment authorization of all of its employees
performing work hereunder pursuant to the Immigration Reform and Control Act CIRCA") and
all other applicable federal and state laws, rules and regulations governing the immigration and
citizenship status of employees. In addition to the indemnification provided by Article V hereof,
Property Manager shall indemnify and hold ARRA and the City harmless from and against any
loss, damage, liability, costs or expenses arising from any noncompliance of this provision by
Property Manager.
Section 11.17 Compliance with Fair Housing Act of 1968. Property Manager shall
comply with the requirements of the Fair Housing Act of 1968 and all other applicable federal
and state fair housing laws, rules and regulations.
Section 11.18 Non - Discrimination. Property Manager agrees that harassment or
discrimination directed toward any person, including a job applicant, a City or ARRA employee,
or a citizen by Property Manager or any of Property Manager's employees or subcontractors on
the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital
status, pregnancy, sex, age, or sexual orientation will not be tolerated in the delivery of services
or otherwise in connection with the performance of this Agreement. Property Manager agrees
that any and all violations of this provision shall constitute a material breach of this Agreement
and may result in its termination.
Section 11.19 Warranty of Authority. Each party hereto represents and warrants to the
other that this Agreement has been duly authorized, executed, delivered and that the individual
executing this Agreement on behalf of such party is duly authorized to do so.
Section 11.20 Compliance with Marsh Crust Ordinance. Property Manager shall
perform or cause its contractors to perform all excavation work in compliance with the City's
Marsh Crust Ordinance as set forth at Section 13 -56 of the Municipal Code. Prior to performing
any excavation work, Property Manager shall verify with the City's Building Official whether
the excavation work is subject to the Marsh Crust Ordinance. Property Manager or its contractor
shall apply for and obtain permits from the City's Building Services on projects deemed to be
subject to the Marsh Crust Ordinance.
Section 11.21 Exhibits. Each of the exhibits referenced in this Agreement is attached
hereto and incorporated herein.
22
IN WITNESS WHEREOF, ARRA and Property Manager have executed this Agreement
in duplicate originals on the date set forth below, effective as set forth above.
PROPERTY MANAGER:
PM REALTY GROUP, L.P.,
a Delaware limited partnership
By: NPMGP, Inc.,
a Delaware corporation
as general partner and authorized agent
By:
Name:
Title:
ARRA:
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY,
a joint powers authority formed under California law
By: Approved as to form:
Name: By:
Title: Name:
Title:
RECOMMENDED FOR APPROVAL:
By:
Name:
Title:
23
LIST OF EXHIBITS
Exhibit A Map of Site
Exhibit B Leasing and Commissions
Exhibit C Annual Management Plan and Budget
Exhibit D ARRA's Approved Contract Form
24
EXHIBIT A
MAP OF SITE
i_ ..._.
L nit ;�1�.li�.���7�r►
EXHIBIT A -1, PART 1
EXCLUDED PROPERTIES
List of Leased Properties
Alameda Point Collaborative
Units
Housing — Bessie Coleman Court
2500 Barbers Point Road 17
2520 Barbers Point Road 17
2530 Barbers Point Road 19
Total Units 53
Housing — Dignity Commons
2300 Moonlight Terrace 4
2330 Moonlight Terrace 4
2300 Rainbow Court 6
2301 Rainbow Court 4
2320 Rainbow Court 3
2350 Rainbow Court 3
2370 Rainbow Court 4
Total Units 28
Housing — Dignity Housing West
230 Corpus Christi Road 4
240 Corpus Christi Road 4
2451 Orion Street 4
2471 Orion Street 6
201 Stardust Place 4
251 Stardust Place 4
271 Stardust Place 4
Total Units 30
Housing — Mariposa
2500 Pensacola Road 6
331 Stardust Place 6
351 Stardust Place 4
350 West Midway Avenue 4
Total Units 20
Housing — Miramar
451 Corpus Christi Road 1
471 Corpus Christi Road 1
501 Corpus Christi Road 1
531 Corpus Christi Road 1
551 Corpus Christi Road 1
571 Corpus Christi Road 1
450 Pensacola Road 1
470 Pensacola Road 1
500 Pensacola Road 1
10002.001 \w - Exhibit A -1 Part 1; Page 1
530 Pensacola Road 1
550 Pensacola Road 1
570 Pensacola Road 1
Total Units 12
Housing — Spirit of Hope I & II
120 Corpus Christi Road 5
170 Corpus Christi Road 4
201 Corpus Christi Road 5
250 Corpus Christi Road 1
251 Corpus Christi Road 1
270 Corpus Christi Road 1
271 Corpus Christi Road 1
300 Corpus Christi Road 1
301 Corpus Christi Road 1
330 Corpus Christi Road 1
331 Corpus Christi Road 1
350 Corpus Christi Road 1
351 Corpus Christi Road 1
370 Corpus Christi Road 1
371 Corpus Christi Road 1
450 Corpus Christi Road 1
470 Corpus Christi Road 1
2591 Orion Street 4
2601 Orion Street 4
2651 Orion Street 4
2751 Orion Street 4
2580 Pensacola Road 1
Total Units 45
Housing — Unity Village
2810 Barbers Point Road 1
200 Corpus Christi Road 4
500 Corpus Christi Road 1
530 Corpus Christi Road 1
550 Corpus Christi Road 1
2501 Pensacola Road 4
Total Units 12
Other APC Properties
451 Stardust Place
650 West Ranger Avenue
677 West Ranger Avenue
751 West Ranger Avenue
Parcel 98 — Garden
Parcel 99 — Nursery
10002.001 \w - Exhibit A -1 Part 1; Page 2
EXHIBIT A -1 - PART 2
EXCLUDED PROPERTIES
BUILDINGS /GROUNDS OCCUPIED AND MAINTAINED
BY THE CITY AT ALAMEDA POINT
Exhibit A -1 - Part 2
Excluded Properties - Buildings /Grounds Maintained by the City
Excluded Buidlings /Grounds
Lift Station (Approximate Location)
EXHIBIT A -1, PART 2
EXCLUDED PROPERTIES
Buildings /Grounds Occupied and Maintained by the City at Alameda Point
Building
Number
Building Name
Location/Address
Square Feet
#1
City Hall West
950 W. Mall Square
48,946 s.f.
#6
Fire House/P.W. Maintenance Annex
950 W. Ranger Ave
39,580 s.f.
#76
Swimming Pool
1111 W. Redline Ave.
24,736 s.f.
#60
Officers Club
641 W. Redline Ave.
29,538 s.f.
#134
Gymnasium
1101 W. Redline Ave.
36,959 s.f.
#522
Training Center
431 Stardust Place
2,400 s.f.
#2 Wing 2
Telephone Switch/Storage
1025 W. Midway Ave.
8,400 s.f.
#419
Pump Station
#194
Storage Bldg.
950 W. Ranger Ave.
850 s.f.
#397
Storage Bldg.
1690 Orion St.
17,300 s.f.
#625/626
P.W. Storage /Recycling Site
1450 Viking
3,400 s.f.
Structure 176
Aiuiy Well Pump House
330 s.f.
T95
Army Well Tank
900 s.f.
#2
Lift Station
500 block of Sunrise
240 s.f.
#3
Lift Station
2991 Main Street
230 s.f.
#4
Lift Station
1501 Viking
150 s.f.
#5
Lift Station
1604 Ferry Point
100 s.f.
#8
Lift Station
200 block of
Ticonderoga
300 s.f.
#14
Lift Station
330 West Hornet
100 s.f.
#16 and #551
Lift Station
300 block of West
Hornet
3,820 s.f.
#19
Lift Station
2551 Lexington
250 s.f.
#20
Lift Station
50 West Hornet
100 s.f.
Grounds
Piedmont Soccer Field
Grounds
City of Alameda Soccer Field (Rec.
and Parks Dpt.)
EXHIBIT A -2
MAP OF ALAMEDA POINT
COLLABORATIVE EXCLUDED PROPERTIES
'
Alameda Point Collaborative Excluded Properties
EXHIBIT B
Leasing and Commissions
I. LEASING.
1.1 Leasing Services. ARRA hereby engages the Property Manager as the exclusive
leasing broker for the purpose of leasing those portions of the Development which may be
available for lease during the term of this Agreement. The Property Manager shall:
(a) Diligently pursue new, renewal, extension and replacement tenants for
premises within the Development on the best terms available in the market.
(b) Investigate prospective tenants as to their credit - worthiness and reputation
in business and ethical matters. Such investigation shall include, without limitation, a review of
the records of governmental agencies having jurisdiction over the use, generation, storage,
transportation and disposal of hazardous wastes and materials and oil. If during the term of this
Agreement, Property Manager becomes aware of the existence or the likely existence of
hazardous materials, Property Manager shall immediately notify the ARRA of the condition,
both orally and in writing.
(c) Negotiate lease terms, consistent with the Annual Management Plan, with
prospective and renewal tenants.
(d) Prepare and present proposed leases to ARRA for approval.
1.2 Right to Approve. ARRA shall have the right, in its sole discretion, to approve
the terms, conditions and form of any proposed lease and to approve any prospective tenants.
1.3 Outside Brokers. If any outside brokers are engaged in obtaining any new tenant
of the Development on behalf of or in conjunction with the Property Manager, and a commission
is due hereunder, the Property Manager shall negotiate the fee payable to such broker.
1.4 Reports.
(a) Leasing Status Reports. On or before the fifteenth day of each month, the
Property Manager shall deliver to ARRA for each building comprising the Development a
leasing status report for the preceding month. The leasing status report shall identify, with
square footage and locations specified, all space occupied under leases which are expected to
terminate or which contain termination options exercisable during the ensuing twelve months.
(b) Prospective Tenants. With respect to prospective tenants, the lease status
report shall include the tenant's name; proposed terms of the lease, including base rent, term,
free -rent periods, escalation provisions, projected occupancy date, tenant finish allowance or
estimated tenant finish cost and options; size of premises to be leased.
26
II. LEASING COMMISSIONS.
2.1 Compensation for Leasing. Subject to Section 2.3 below, the Property Manager
shall be entitled to a leasing commission with respect to any lease entered into during the Term
of this Agreement, when (a) the lease has been fully executed, and (b) the tenant takes occupancy
of the leased premises. To the extent that no outside broker is involved, payment of the leasing
commission to the Property Manager shall be made ratably only out of payments of Fixed
Annual Minimum Rent (as hereinafter defined) made by the tenant in equal monthly installments
over the term of the lease commencing on the date that the conditions set forth in clauses (a) and
(b) of the preceding sentence. Subject to the terms and provisions of Section 2.4 of this
Exhibit B, the amount of such leasing commission shall be five percent (5 %) of the Fixed
Annual Minimum Rent for the first five (5) years of the initial term of the lease, excluding any
renewal, extension or expansion options included in such lease, any period of free rent and any
period after the tenant may, at its option, terminate the lease. "Fixed Annual Minimum Rent"
shall mean the base rent payable by the tenant, excluding any payments for real estate taxes,
operating expenses, insurance or other such payments payable by the tenant or rent payments
intended to amortize tenant improvement investments. Further, any other rent abatements or
tenant concessions shall be deducted in calculating the amount of Fixed Annual Minimum Rent
on which the commission is payable.
2.2 Renewals. A leasing commission equal to two and one -half percent (2 -112 %) of
the Fixed Annual Minimum Rent payable for the first five (5) years of the renewal term shall be
earned by the Property Manager for any renewal or extension of the term or expansion of the
premises of any lease, and shall be payable ratably out of payments of Fixed Annual Minimum
Rent made by the tenant under such lease in equal monthly installments over the term of the
lease commencing on the date that conditions set forth in clauses (a) and (b) of the first sentence
of Section 2.1 above have been satisfied as to such renewal, extension or expansion, as
applicable. Notwithstanding anything to the contrary in Section 2.1 above or this Section 2.2, no
commission shall be paid for any lease term exceeding an initial five (5) years plus a five (5)
year renewal term.
2.3 Payment Terms. The parties hereto contemplate payment of the leasing
commissions will be payable only out of rental payments from tenants actually received.
Accordingly, the Property Manager has agreed to the foregoing schedule of payments set forth in
Sections 2.1 and 2.2 above. However, to the extent that an outside broker is involved and
unwilling to accept the foregoing basis of payment, amounts payable to such outside broker shall
be agreed to by the parties hereto on a case by case basis.
2.4 Special Circumstances. The amount of leasing commission payable by ARRA to
the Property Manager pursuant to Sections 2.1, 2.2 and 2.3 of this Exhibit B shall be subject to
the following qualifications:
(a) If, prior to the termination of the initial teen of its lease, an existing tenant
relocates within the Development, the commission applicable to the portion of the relocation
lease term equal to the unexpired term of the original lease shall be based upon the increase, if
any, in the rent.
27
(b) The commission due for any expansion by an existing tenant shall be
based upon the net overall increase in rent payable by the tenant; and if another tenant vacates its
space prior to the expiration of its lease term to permit such expansion, the rent upon which the
commission is based shall be reduced by the vacating tenant's rent for the period of such
unexpired term.
(c) If upon expiration of its existing lease, an existing tenant relocates to
another space in the Development, the commission applicable to such lease shall be calculated as
though the lease was a renewal as provided in Section 2.2 above.
(d) The rent upon which the commission is based shall be reduced by the total
amount of any rent payable to a tenant by ARRA for space subleased back to ARRA.
(e) No commission shall be paid to the Property Manager with respect to any
lease for any period after ten (10) years from the initial occupancy of a tenant in the
Development.
(f) No commission shall be payable to the Property Manager with respect to
any lease or other occupancy agreement for ARRA, City or any of their related agencies, or
Property Manager; provided that:
(g) No commission shall be payable to the Property Manager with respect to
any lease or other occupancy agreement for the Property Manager, except that a commission
may be payable to the Property Manager for a sublease or other sub - occupancy agreement of
such premises provided such sublease or other sub - occupancy agreement was negotiated as a
commercial, "arm's length" transaction and the subtenant or sub - occupant is not an affiliate of
the Property Manager.
III. ENTIRE COMPENSATION. Except as expressly set forth herein, no leasing
commission, finder's fee, broker's fee or other type of commission shall be payable to the
Property Manager for any lease, ground lease, sale, conveyance, or transfer of the Development
or any interest in the Development, or for any financing or refinancing of the Development.
28
EXHIBIT C
ANNUAL MANAGEMENT PLAN
AND BUDGET
ALAMEDA POINT COMMUNITY PARTNERS
Forecast - Budget Report
ACTUAL AMOUNTS
FORECAST AMOUNTS
Total
Jul-03 Aug -03 Sep-03 Oct-03 Nov-03 Dec -03
Jan -04 Feb -04 Mar -04 Apr -04 May 04 Jun -04
Forecast
Budgeted
ERATING REVENUES
.NTAL REVENUE
Commercial Operations
371,555 621,779 453,776 504,009 556,106 680,830
489,171 488,011 492,417 567,067 482,023 482,279
6,189,022
6,422,570
Comm Ops - NW Territory
0 11,250 0 6,750 0 0
0 200 0 200 0 200
18,600
1,200
Port Operations
51,412 171,185 155,407 137,289 28,114 154,285
148,500 148,500 293,500 148,500 148,500 148,500
1,733,692
1,408,492
76,661
9,426,467
39,503
1,782,000
1,588,404
761966
9,871,140
34,980
Residential Operations
127,193 106,765 119,185 120,287 117,294 114,496
117,212 117,212 117,212 117,212 117,212 117,212
Equpment Rental
TOTAL RENTAL REVENUE
7,011 6,464 2,671 9,710 6,464 6,073
557,171 917,443 731,039 778,045 707,978 955,684
6,378 6,378 6,378 6,378 6,378 6,378
761,261 760,301 909,507 839,357 754,113 754,569
RECOVERIES
2,507 3,945 4,545 3,012 3,937 4,667
2,915 2,815 2,815 2,815 2,765 2,765
Reimb - Water/Utilities
Tenant Finish Reimb
TOTAL RECOVERIES
3,254 3,254 0 6,508 3,254 3,254
5,761 7,199 4,545 9,520 7,191 7,921
3,254 3,254 3,254 3,254 3,254 3,254
6,169 6,069 6,069 6,069 6,019 6,019
39L048
78,551
39,048
74,028
OTHER REVENUE
Late Charges
0 1,265 -50 74 0 0
100 100 100 100 100 100
1,889
8,524
3L626
14,039
1,200
0
3, 600
4,800
Other Revenue
0 0 0 0 3,002 5,522
0 0 0 0 0 0
Interest & Dividends
TOTAL OTHER REVENUE
258 340 364 299 274 291
258 1605 314 373 3276 5813
300 300 300 300 300 300
400 400 400 400 400 400
TOTAL OPERATING REVENUES
563,190 926,247 735,898 787,938 718,445 969,418
767,830 766,770 915,976 845,826 760,532 760,988
9,519,057
9,949,968
RECOVERABLE EXPENSES
SECURITY
Life Safety- Testing
681 584 0 0 1,628 7,350
5,000 0 2,065 0 0 2,065
19,373
23,260
Life Safety- Repair & Main
TOTAL SECURITY
0 1,341 65 0 0 4,200
681 1,925 65 0 1,628 11,550
200 1,700 200 200 200 1,700
5,200 1,700 2,265 200 200 3,765
9L806
29,179
251900
49,160
CLEANING /JANITORIAL
CleaningContractSvcs
TOTAL CLEANING /JANITORIAL
-1,185 0 0 0 0 0
-1,185 0 0 0 0 0
0 0 0 0 0 0
0 0 0 0 0 0
-1,185
(1,185)
79,184
60,508
748
10,869
0
0
76608
50,000
1,800
40,800
REPAIRS & MAINTENANCE
R &M -Wa9es
R&M- Structural /Roof
- -- - -- --- --- --- -- - - - --
1,122 12,305 6,355 0 12,711 6,355
7,500 7,500 6,334 6,334 6,334 6 ,334
0 0 1,400 0 0 0
-
7,108 27,000 25,000 0 0 0
R &M -K ys /Locks
-- ------ -
79 0 69 0 0 0
- - - - -- -- -- --- - - - -- -- - --
0 200 0 400 0
R &M- Supplies
0 353 829 871 478 338
1,200 2,000 1,200 1,200 1,200 1,200
R &M -Other
TOTAL REPAIRS & MAINTENANCE
0 648 -147 2,160 14,070 25,544
1,201 13,306 8,507 3,031 27,259 32,238
41,000 26,000 90,000 2,000 2,000 2,000
56,808 62,500 122,734 9,534 9,934 9,534
205L275
356,584
31 316,, 670 0
- 2525
95,174
2525- 2525-
4,260
-- --
19,368
132,880
301,488
441,254
�� --
141,200
7,500
---18,616 6
22,260
8,300
^,7MINISTRATIVE
25,096 25,098 47,578 25,533 533 25,533 25,533 3
iin -Wages 3253-
_2525- - 2525--
12,555 30,371 21,100 20,069 23,723 34,477
2525- 2525--
Ain- Benefits
°2525 2525-
3,844 9,510 6,752 6,144 6,241 6,883
44
- 2525-- 2525 2525- 2525 - 2525- - °_
8,031 8,031 15,225 8,171 8,171 8,171
2525-- 2525--- - 2525---- 2525-- -- _2525 - 2525-- 2525
625 625 625 350 350 350
-
618 518 518 618 518 122,5151 8
- 2525---
Admin- Supplies
312 990 309 -122 21 -175
Admin-Equip Maint &Lease
2525- 2525-- 2525 -
-
2525 1,293 439 643 754 366 565
Admin- Telephone
956 2,022 1,180 1,011 1,541 969
1,500 1,955 1,955 1,955 1,955 1,955
18,954
2,325
Admin- Dues /Assoc Costs
0 0 0 0 0 375
0 650 0 650 0 650
Admin -Lic /Fees /Permits
0 0 0 63 0 1,242
0 1,000 0 1,000 0 1,000
4,305
6,000
Admin - Postage /Freight
92 195 239 282 717 254
2525 - 2525 2525- °- 2525 2525 2525
0 0 0 0 0 0
200 200 200 700 200 20.0
2525- 2525 -- 2525-- 2525 -- 2525-- 2525 2525-- -. 2525 2525--
- 2525-..- 0 1800 4000 0 0 0
250 250 250 250 250 250
3,479
5,800
2,254
10,831
483,420
3,900
5,800
3,000
Admin - Office Set Up
2525- 2525-- 2525
Admin - Travel & Entertain
2525-- - 2525-- 2525 2525--
141 328 0 163 49 73
Admin -Other
TOTAL ADMINISTRATIVE
GENERAL BUILDING SERVICES
GBS -Trash Removal .,
TOTAL GENERAL BUILDING SERVICES
°2525 2525- - - _
682 2,180 600 1,080 229 60
19,874 46,034 30,822 29,444 32,886 44,723
1,000 1,000 1,000 1,000 1,000 1,000
37,323 41,128 71,351 40,227 37,977 51,627
0
657,830
22,200
22,200
623 623 351 693 1,236
278 623 623 351 693 1,236
1,500 1,500 1,500 1,500 1,500 1,500
1,500 1,500 1,500 1,500 1,500 1,500
12,804
12,804
.-.. - 2525-- --
Utilities - 2525-- - 2525--
- 2525 -
2525- 2525 ._
10800
10,800
Utilities - Electricity
TOTAL UTILITIES
2525- -
0 0 0 0 0 0
0 0 0 0 0 0
2525- - 2525 2525.. 2525 2525 2525--- 2525- 2525- 2525-- 2525-
0 2,160 2,160 2,160 2,160 2,160
0 2,160 2,160 2,160 2,160 2,160
- --
25,921
25,921
LANDSCAPING
2525 2525--
2525- - 2525-- 2525
3333
180,564
2525-- 2525 2525
51,693
-
6,166
Landscaping - Contract Svcs
2525-- 2533 - 2525- -
12,845 12,799 13,223 -1,856 25,182 13,371
- 2525- - -
3333- - 2525-- 2525 2525-- -..
14,000 21,000 14,000 21,000 14,000 21,000
__
230,000
Landsing- Exterior
25- 2525- 2525-_ __ - 2525
0 0 0 157 23,496 0
2525 2525 2525
2525 - 2525--_- 2525---- 2525- 25..25_
14,000 0 6,040 0 8,000 0
75,120
La25ndsca i�ng_R &M Exterior
2525 2525 -- 2525__ 2525
-
10,469 0 1,079 0 -9,553 3,171
2525-
2525-- 2525 2525-
0 0 400 300 300 0
°
1,500
- - -- ---
12,000
318,620
Landscaping -Other
TOTAL LANDSCAPING
0 0 0 0 0 435
23,314 12,799 14,302 -1,699 39,125 16,977
2525 2525- 2525 - - 2525 - - - _ _ _ 2525-- 2525
11,000 0 0 0 0 0
39,000 21,000 20,440 21,300 22,300 21,000
-
11,435
249,858
2525- 2525 2525
231L613
231,613
MANAGEMENT FEES
2525 2525-- _ -
- 2525-- 2525
Mgmt Fees - Recoverable
TOTAL MANAGEMENT FEES
2525- - 2525-- 2525
18,622 16,884 23,264 22,125 17,537 21,626
18,622 16,884 23,264 22,125 17,537 21,626
2525 2525 2525- - 2525 - - - -- 2525-- 2525 2525-- - 2525----
18,523 18,491 18,618 20,863 17,523 17,537
18,523 18,491 18,618 20,863 17,523 17,537
-
218,156
218,156
14753.07
TOTAL RECOVERABLE EXPENSES
62,786 91,570 77,583 53,253 119,128 128,350
158,354 146,319 236,908 93,624 89,434 104,963
1,362,272
1,567,454
859,953
2525--
476,768
1,336,721
NON - RECOVERABLE EXPENSES
63,780 63,779 53,290 63,779 63,779 63,779
2525--- 2525
68,170 68,170 68,170 68,170 146,917 68,170
Por2peration Exp 3253
939,787
Residential Operation Exp
TOTAL NON - RECOVERABLE EXPENSES
31,247 61,460 55,951 39,912 47,845 49,831
95,026 125,239 109,241 103,691 111,625 113,610
2525- - - - 2525 2525-- 2525--
30,065 30,065 30,065 40,197 30,065 30,065
98,235 98,235 98,235 108,367 176,982 98,235
---
442,859
1,382,646
NET OPERATING INCOME
405,379 709,438 549,075 630,994 487,693 727,458
511,241 522,216 580,833 643,835 494,116 557,790
6,820,064
6,999,868
'I. OPERATING EXPENSES
2525--
o /NERSHIP EXPENSES
Expensed Lease Comm
TOTAL OWNERSHIP EXPENSES
0 0 0 6,244 0 0
0 0 0 6,244 0 0
4,000 4,000 4,000 4,000 4,000 4,000
4,000 4,000 4,000 4,000 4,000 4,000
30,244
30,244
20,116
20,116
TOTAL NON - OPERATING EXPENSES
NET INCOME (LOSS)
0 0 0 6,244 0 0
405,379 709,438 549,075 624,751 487,693 727,458
4,000 4,000 4,000 4,000 4,000 4,000
507,241 518,216 576,833 639,835 490,116 553,790
30,244
6,789,820
20,116
6,979,752
Alameda Point Property Management
Employees:
• Sr. Property Manager
• Property manager
• Assistant Property Manager
• Property Coordinator
• Receptionist
ALAMEDA POINT
MANAGEMENT PLAN
February 2004
Landscaping Specifications
1. DESCRIPTION
Landscape maintenance preserves and sustains the quality of a landscape. Landscapes are generally
designed with a given style, formal or informal: proper maintenance maintains the intended design
concept. Contractor shall provide costs which are delineated on the map provided. In addition, contractor
shall provide weed control twice annually along the south side of Atlantic from Webster to just East of
Atlantic Gate.
2. WORK INCLUDED
This section includes the maintenance of plantings, irrigation, debris removal and other related work.
3. QUALITY ASSURANCE
The Contractor shall be properly licensed to perform landscape work including pest control. All properties
to be operationally evaluated a minimum of once per month.
Contractor will assign an on -site supervisor to manage the day -to -day operations and assure the
upmost project quality.
4. SITE CONDITIONS
A. Existing Conditions
1. The Contractor shall inspect the entire designated site and be familiar with the requirements
and growth habits of all existing plant material.
2. Upon receipt of the Request for Proposal (RFP), the Contractor will conduct a physical
inspection and review all areas on the map, which require service.
3. Prior to commencement of work, the Contractor point of contact shall advise the Client or
Client's representative of existing conditions that may affect the project.
B. Environmental Conditions
The Contractor shall advise the Client or Client's representative of serious disease or pest problems
and any other conditions that may be detrimental to the landscape.
5. SCHEDULING
Any changes in work schedule shall be communicated to the Client prior to the change taking effect.
6. EQUIPMENT
The Contractor will provide and maintain all equipment necessary to properly complete the maintenance
work. Equipment will be safe, proper, efficient and suited to and for the job. All cutting blades will be
kept properly sharpened. All equipment will have all require safety devices in place and in operation.
The Contractor will follow the company's established and accepted Safety Procedures and Illness
and Injury Prevention Policies at all times.
Landscaping Specifications (continued)
7. EMERGENCIES
The Contractor will provide 24 -hour seven (7) days a week after -hour emergency service.
Key employee and supervisor personnel home, pager, cell numbers required.
8. PRODUCTS
A. Fertilizers
Commercial fertilizers may be pellet, tablet, and granular or liquid form and will conform to the
requirements of the California Food and Agriculture Code. Choice of fertilizer will be based on soil
fertility tests and /or the specific plant requirements.
B. Pesticides
All pesticides will be registered in the State of California and conform to all requirements of the California
Food and Agriculture Code.
9. TREES
A. Pruning
1. All trees will be allowed to grow their natural genetic form and size, unless specifically accepted
by the Client or Client's representative. The Contractor will be responsible for the pruning of
trees up to 15 feet in height. Trees exceeding this height limit will be priced separately.
2. Tree pruning will have two basic objectives: to promote structural strength and to accentuate
the natural form and features of the tree.
3. Under no circumstances will stripping of lower branches ( "raising up ") of young trees be
permitted. Lower branches will be retained in a "tipped back" or pinched condition with as
much foliage as possible to promote callipered trunk growth ( "tapered trunk "). Lower branches
will be cut -off only after the tree is able to stand erect without staking or other support.
4. Trees with strong central leader or conical (pyramidal) shape generally need little or no pruning.
As a rule, the single central leader will never be racially topped or cut back, as this will create
an unnatural multi - leader form and an abundance of weak vegetative growth.
5. Trees with multi - leaders or a branched main trunk system will be pruned to select and develop
permanent scaffold branches that have vertical spacing. This will be done to eliminate narrow,
V- shaped branch forks that lack strength, to maintain growth within space limitations, and to
maintain a natural appearance.
6. Conifers will be thinned out and shaped only when necessary, to prevent wind and storm
damage.
7. Proper side branch removal will require cutting at the main trunk just beyond the branch bark
ridges.
8. All suckers and water sprouts and crisscrossing dead, diseased, broken and heavily laden
side branches will be removed to thin crown for less wind resistance.
Landscaping Specifications (continued)
B. Staking and Guying
1. The purpose of staking and guying trees is to support and protect young trees until such time
as they can stand - alone.
2. All trees stakes, guys and ties will be maintained to properly support the trees and will inspected,
to prevent girdling or chafing of trunks or branches or rubbing that may cause bark wounds.
3. Stakes and guys will be removed when no longer required for support.
C. Tree Wells
1. Bare soil wells will be maintained around all trees. A circle with a radius of 12 -24 inches
beyond the bark of the tree will be maintained free of grass, ground cover and weeds.
2. Grasses and weeds will be removed or sprayed with a herbicide.
10. SHRUBS AND VINES
A. Pruning
1. The general objectives for pruning of shrubs and vines are to maintain growth within space
limitations, to maintain a natural appearance, to eliminate diseased or damaged growth, and
to select and develop permanent branches.
2. Shrubs will pruned to conform to the design concept of the landscape.
3. Vine will be pruned to control growth and direction, and will be kept "in- bounds" and not allow
to grow over window, doors, gates or other structural features.
4. All pruning cuts will be made to lateral branches or buds or flush with trunk or main stem.
Pinching or light heading back of terminal buds on selected shrub species promotes bushiness.
To prevent legginess (sparse lower branches) shrubs will be maintained with the lower foliage
wider than the upper foliage. This practice allows more light to reach the lower foliage.
11. GROUND COVERS
A. Edging
1. Established ground covers bordering sidewalks, curbs or structures will be edged as often as
necessary to provide a clean, crisp line at all times and shall be maintained 2" — 4" from
borders or structures.
2. Ground covers will not be allowed to touch or cover the crown of shrubs and trees.
3. Ground covers may need to be mowed /pruned on an annual basis depending on species
growth habit.
Landscaping Specifications (continued)
12. LAWNS
A. Mowing
1. Lawns will be mowed weekly during the growing season and at as needed during the dormant
season to maintain a neat appearance. Generally, mowing heights will be 2" - 21/2' in fall/
winter and 2'/2' - 3'/z" in spring /summer.
2. Mowing patterns will be alternated each week, or as needed, to avoid creating ruts and
compaction.
3. Clipping will be either caught and removed or where acceptable mulching mowers can be
used.
B. Edging
1. All lawn edges along sidewalks and curbs, as well as shrub or groundcover border areas, will
be edged every week during the active growing season or as needed to create a clean look.
2. Hard edging will be appear as a clean, smooth and vertical line.
3. Lawn sprinkler heads will only be edged to allow for proper distribution of water.
13. FERTILIZATION TREATMENT
A. Turf will be fertilized 6 -8 times per year or 6 -9 lbs. actual nitrogen per 1000 sq. ft., according to
individual needs to maintain good health, vigor and color throughout the year.
B. Ground cover and planter beds will be fertilized as required to maintain acceptable standards
(up to 3 times per year).
C. Special fertilization for acid- loving plant material (i.e., azaleas, camellias, rhododendrons, etc.)
will applied as required to maintain acceptable standards (up to 2 times per year)
14. WEED CONTROL
A. Lawn, shrub, groundcovers and flowerbeds shall be kept free of weeds by hand, machine
or chemical use.
B. Contractor shall make 1 application per year of pre - emergent weed control for all turf areas to
deter crabgrass. Application will be performed in the spring.
C. Planter -bed and ground cover will receive 2 applications per year of pre- emergent weed control.
One application is made in the spring and the other in the fall.
D. Contractor will perform 2 applications per year of broadleaf weed control for all turf areas. One
application is made in the spring and the other in the fall.
Landscaping Specifications (continued)
E. Weeds in large open areas shall not be permitted to exceed 6" in winter and 2" in summer.
F. Contractor will perform pre - emergent and post - emergent applications, which will be applied as
needed to sidewalks, asphalt surfaces and bear ground areas throughout the project.
15. IRRIGATION SYSTEMS
A. General
1. Proper irrigation system maintenance includes the overall supervision of the system, controller
scheduling, routine checks and adjustments, and necessary repairs from tee to head.
2. Inspections of the irrigation systems in operation will be made weekly during the summer
months, April through October, and monthly November through March, to detect any
malfunctioning of the system.
3. All malfunctioning equipment will be repaired prior to the next scheduled irrigation check, or as
quickly as deemed viable.
4. All replacement heads will be of the same manufacturer, type and application rates, as available,
working toward a standardized system throughout the property.
5. Crew or on -site gardeners are responsible for making minor repairs and reporting the condition
of the irrigation system to supervisor.
6. The Contractor's on -site irrigation staff will be responsible for operating the irrigation systems
in their specified areas of maintenance, with the duties of adjusting controllers, observing the
effectiveness of the irrigation system, and making minor adjustments to the system.
7. The irrigation programs will be adjusted to conform to plant requirements, soil and slope
conditions, weather and change of season, within the limitations of the system.
8. Ideally, water will not be applied at a rate higher than the infiltration rate of the soil.
9. Soil moisture levels will be regularly evaluated to determine irrigation schedules and make
necessary adjustments throughout the seasons.
10. Damage incurred by Contractor shall be repaired at Contractor's expense. Any other repairs
shall be reported to the Client with recommendations and cost to repair.
16. SEASONAL COLOR DISPLAYS
A. The Contractor will provide materials and labor to maintain annual beds throughout the project.
B. Seasonal color is generally changed out 3 times per year or as deemed necessary by the
Client.
Landscaping Specifications (continued)
C. Contractor shall provide costs for seasonal color in two ways:
1. Cost per installation
2. Cost per month based on total yearly flat count
D. Contractor shall provide seasonal color costs based on:
1. Atlantic Entrance = 50 flats per change
2. Main Entrance = 50 flats per change
E. Contractor shall keep flower beds clean, weed free and fresh at all times.
17. DRAINAGE SYSTEM
A. Good drainage is essential for healthy and vigorous plant growth, and system will be routinely
checked for blockage, which could cause ponding, flooding and excessive saturation of the
soil and plant root zones.
B. Surface drainage swales will be kept free of leaves, debris and sediment accumulations.
18. DISEASE AND PEST CONTROL
A. All chemical controls will be applied under the strict supervision of a licensed and qualified pest
control applicator, per the manufacturer's recommended label application procedures.
B. Where unusually high infections or infestations occur, an accurate identification of the disease
or insect will be made and the control product selected with care, prior to application.
19. DEBRIS REMOVAL
A. Litter and trash including rubbish, papers, bottles, cans, and other debris will be removed from
all hardscape and softscape areas of the site on a weekly basis. Any hazardous waste will
immediately be brought to the attention of the Client or Client's representative. Empty all
public trash receptacles on a regular basis (includes all containers located on public walkways
with garbage bag replacement).
B. Parking lot, walkways and patio will be blown down.
C. Clean curbs and corner build -up in parking lots areas.
D. All cutting and clipping generated from maintenance work are to be removed from the job -site,
unless special arrangements have been made.
Landscaping Specifications (continued)
20. SAFETY
A. The Contractor will establish and maintain the necessary safeguards to prevent accidental
injury or damage to Client's personnel, property or equipment. The Contractor will be responsible
for damaged caused by any employee or subcontractor in its employ.
B. The Contractor will maintain manufacturer's manuals for all machinery and equipment under
their control. Personnel will be thoroughly trained prior to operating machinery or equipment.
C. Machines will not be operated unless all guards are securely in place and operational. Personnel
shall wear the appropriate personal protective equipment while performing the work.
D. Fire prevention procedures will be implemented, including such controls as the careful handling
of flammable liquids, the use of closed containers to prevent evaporation, the removal of all
possible sources of ignition, adequate ventilation and the use of relief vents. Flammable
materials will be stored properly.
21. INSURANCE
As required by ARRA
22. WAGE
Contractor is required to pay California Prevailing Wage Scale for Alameda County.
23. PRICE LIST
The Contractor shall provide unit price list for the following items.
TREES: Including stakes and ties
5 gallon
15 gallon
24" box
36" box
48" box
SHRUBS:
1 gallon
5 gallon
15 gallon
24" box
Landscaping S (continued)
SPECIALTY ITEMS
PER FLAT:
Ground Covers
Annuals
PER FOOT:
Sod (soll preparation not included)
Redwood, 2x4
Redwood benderboard
MOSS ROCK / DECORATIVE ROCK:
TREE TIES:
Tie
STAKES:
8 foot
10 foot
Specialty Materials:
Bark Decompose Granite
Drainage Rock Compost Biend
Hand Seeding (per pound)
Dump Fee
-GnnoU|mad
-Large|oad
Irrigation Loaner Clock (use fee)
ftrigation Line Tracer (use fee)
Certified Backflow Testing (per unit)
Maintenance Specifications
Standards for Building and Project Maintenance:
• Monitor and notify management staff of vandalism to the project.
Graffiti abatement to occur within 24 hours of notification. Paint color to
match as closely as possible.
• Notify management staff of discarded items (i.e. couches, mattresses,
shopping carts, etc.) and remove as soon as possible.
• Replace windows which are located on the first floor of buildings where
practical.
• Place 1/2" plywood over broken windows which are located on the first
floor and not practical to fix.
• Secure entry points of buildings which have been compromised.
• Perform minor carpentry and construction improvement tasks as
deemed necessary.
• Perform basic plumbing repairs as needed.
• Perform basic electrical repairs as needed.
• Paint bollards, fire hydrants, and other fixtures as needed to provide a
clean and presentable image.
• Pick -up trash and empty receptacles as needed.
• Misc. building maintenance tasks as required.
EXHIBIT D
ARRA'S APPROVED FORM OF THE CONTRACT
CONTRACTOR AGREEMENT
No.
THIS AGREEMENT, entered into this _`h day of , 200, by and between PM
REALTY GROUP, L.P., a Delaware limited partnership (hereinafter referred to as "Manager "), as
agent for the Alameda Reuse and Redevelopment Authority, a Joint Powers Authority Established by
the City of Alameda and the County of Alameda Under the California Joint Exercise of Powers Act
(hereinafter referred to as "ARRA "), whose address is c/o PM Realty, 333 Bush Street, Suite 1510,
San Francisco, California 94104, and , a , whose address is
(hereinafter called "Contractor "), in reference to the following:
RECITALS:
A. The Manager has a contractual right to manage certain real property and
improvements known as Alameda Point located in Alameda, California, on behalf of the ARRA (the
"Project ").
B. The Manager and Contractor desire to enter into an agreement for
in accordance with Specifications, Special Provisions and
Plans as attached in "Exhibit A."
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM:
The Contractor shall begin work within five (5) working days after receiving notice from the
Manager to commence the work, and shall diligently prosecute the work to completion before the
expiration of thirty (30) consecutive working days from the date of receipt of notice to begin work.
2. SERVICES TO BE PERFORMED:
Contractor agrees, at its own cost and expense, to furnish all labor, tools, equipment,
materials, except as otherwise specified, and to do all work strictly in accordance with
Specifications, Special Provisions and Plans, which Specifications, Special Provisions and Plans are
hereby referred to and expressly made a part hereof with the same force and effect as if the same
were fully incorporated herein.
3. COMPENSATION TO CONTRACTOR:
Contractor shall be compensated for services performed pursuant to this Agreement in the
amount and manner set forth in Contractor's bid, which is attached hereto as "Exhibit B" and
incorporated herein by this reference. Payment will be made in the same manner that claims of a like
character are paid by the Manager, with checks drawn on the treasury of the ARRA, to be taken from
the operating fund.
1
Payment will be made within thirty (30) days by PM Realty in the following manner: On the
first day of each month, Contractor shall submit a written estimate of the total amount of work done
the previous month. Payment shall be made for 90% of the value of the work. The Manager shall
retain 10% of the value of the work as partial security for the completion of the work by Contractor.
Retained amounts shall be paid to Contractor within 15 days of acceptance by the City of the project.
Payment shall not be construed as acceptance of defective work. No interest will be paid to
Contractor on retained funds.
4. TIME IS OF THE ESSENCE:
Contractor and Manager agree that time is of the essence regarding the performance of this
Agreement.
It is agreed by the parties to the Agreement that in case all the work called for under the
Agreement is not completed before or upon the expiration of the time limit as set forth in paragraph
1 above, damage will be sustained by the Manager, and that it is and will be impracticable to
determine the actual damage which the Manager will sustain in the event of and by reason of such
delay. It is therefore agreed that the Contractor will pay to the Manager the $500.00 (five hundred
dollars) per day for each and every day's delay beyond the time prescribed to complete the work; and
the Contractor agrees to pay such liquidated damages as herein provided, and in case the same are
not paid, agrees that the Manager may deduct the amount thereof from any money due or that may
become due the Contractor under the Agreement.
It is further agreed that in case the work called for under the Agreement is not finished and
completed in all parts and requirements within the time specified, the Manager shall have the right to
extend the time for completion or not, as may seem best to serve the interest of the Manager.
The Contractor shall not be assessed with liquidated damages during any delay in the
completion of the work caused by an act of God or of the public enemy, acts of the Manager, fire,
flood, epidemic, quarantine restriction, strikes, freight embargoes or delays of subcontractors due to
such causes; provided that the Contractor shall, within one (1) day from the beginning of such delay,
notify the Manager in writing of the causes of delay. The Manager shall ascertain the facts and the
extent of the delay, and its findings of the facts thereon shall be final and conclusive.
5. STANDARD OF CARE:
Contractor agrees to perform all services hereunder in a manner commensurate with the
prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services
shall be performed by qualified and experienced personnel who are not employed by the Manager or
ARRA nor have any contractual relationship with Manager or ARRA.
6. INDEPENDENT PARTIES:
Manager and Contractor intend that the relationship between them created by this Agreement
is that of employer- independent contractor. The manner and means of conducting the work are
under the control of Contractor, except to the extent they are limited by statute, rule or regulation and
2
the express terms of this Agreement. No civil service status or other right of employment will be
acquired by virtue of Contractor's services. None of the benefits provided by Manager to its
employees, including but not limited to unemployment insurance, workers' compensation plans,
vacation and sick leave are available from Manager to Contractor, its employees or agents.
Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or
other purposes normally associated with an employer- employee relationship from any fees due
Contractor. Payments of the above items, if required, are the responsibility of Contractor.
7. IMMIGRATION REFORM AND CONTROL ACT (IRCA):
Contractor assumes any and all responsibility for verifying the identity and employment
authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA or
other federal, or state rules and regulations. Contractor shall indemnify and hold Manager and
ARRA harmless from and against any loss, damage, liability, costs or expenses arising from any
noncompliance of this provision by Contractor.
8. NON - DISCRIMINATION:
Consistent with Manager's policy that harassment and discrimination are unacceptable
employer /employee conduct, Contractor agrees that harassment or discrimination directed toward a
job applicant, a Manager employee, or a citizen by Contractor or Contractor's employee on the basis
of race, religious creed, color, national origin, ancestry, handicap, disability, marital status,
pregnancy, sex, age, or sexual orientation will not be tolerated. Contractor agrees that any and all
violations of this provision shall constitute a material breach of this Agreement.
9. HOLD HARMLESS:
Contractor shall indemnify, defend, and hold harmless Manager, ARRA, the City of
Alameda, its City Council, boards, commissions, officials, employees, and volunteers
( "Indemnitees ") from and against any and all loss, damages, liability, claims, suits, costs and
expenses whatsoever, including reasonable attorneys' fees ( "Claims "), arising from or in any
manner connected to Contractor's negligent act or omission, whether alleged or actual, regarding
performance of services or work conducted or performed pursuant to this Agreement. If Claims are
filed against Indemnitees which allege negligence on behalf of the Contractor, Contractor shall have
no right of reimbursement against Indemnitees for the costs of defense even if negligence is not
found on the part of Contractor. However, Contractor shall not be obligated to indemnify
Indemnitees from Claims arising from the sole or active negligence or willful misconduct of
Indemnitees.
10. INSURANCE:
On or before the commencement of the terms of this Agreement, Contractor shall furnish
Manager with certificates showing the type, amount, class of operations covered, effective dates
and dates of expiration of insurance coverage in compliance with paragraphs 10A, B, C and D.
Such certificates, which do not limit Contractor's indemnification, shall also contain
substantially the following statement: "Should any of the above insurance covered by this
certificate be canceled or coverage reduced before the expiration date thereof, the insurer
affording coverage shall provide thirty (30) days' advance written notice to ARRA by certified
3
mail, `Attention: Risk Manager. "' It is agreed that Contractor shall maintain in force at all times
during the performance of this Agreement all appropriate coverage of insurance required by this
Agreement with an insurance company that is acceptable to Manager and licensed to do
insurance business in the State of California. Endorsements naming the United States
Department of the Navy, Alameda Reuse and Redevelopment Authority, City of Alameda,
Alameda City Council, their respective Boards, Commissions, Officers, Employees and Agents,
PM Realty Group, its Officers and Employees as additional insured shall be submitted with the
insurance certificates.
A. COVERAGE:
Contractor shall maintain the following insurance coverage:
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage in the following minimum limits:
(3)
Personal Injury or Death: $3,000,000 each occurrence
Property Damage: $1,000,000 each occurrence
If submitted, combined single limit policy with aggregate limits in the
amounts of $3,000,000 will be considered equivalent to the required
minimum limits shown above.
Automotive:
Comprehensive automobile liability coverage in the
following minimum limit:
Combined Single Limit: $1,000,000 each occurrence
B. SUBROGATION WAIVER:
Contractor agrees that in the event of loss due to any of the perils for which it has agreed to
provide comprehensive general and automotive liability insurance, Contractor shall look solely to its
insurance for recovery. Contractor hereby grants to the ARRA or Manager, on behalf of any insurer
providing comprehensive general and automotive liability insurance to either Contractor or ARRA or
Manager with respect to the services of Contractor herein, a waiver of any right to subrogation which
any such insurer of said Contractor may acquire against ARRA or Manager by virtue of the payment
of any loss under such insurance.
C. FAILURE TO SECURE:
If Contractor at any time during the term hereof should fail to secure or maintain the
foregoing insurance, Manager shall be permitted to obtain such insurance in the Contractor's name
or as an agent of the Contractor and shall be compensated by the Contractor for the costs of the
4
insurance premiums at the maximum rate permitted by law and computed from the date written
notice is received that the premiums have not been paid.
D. ADDITIONAL INSURED:
The United States Department of the Navy, Alameda Reuse and Redevelopment Authority,
City of Alameda, Alameda City Council, their respective Boards, Commissions, Officers,
Employees and Agents, PM Realty Group, their Officers and Employees shall be named as an
additional insured under all insurance coverages, except workers' compensation insurance. The
naming of an additional insured shall not affect any recovery to which such additional insured
would be entitled under this policy if not named as such additional insured. An additional
insured named herein shall not be held liable for any premium, deductible portion of any loss, or
expense of any nature on this policy or any extension thereof. Any other insurance held by an
additional insured shall not be required to contribute anything toward any loss or expense
covered by the insurance provided by this policy.
E. SUFFICIENCY OF INSURANCE:
The insurance limits required by Manager are not represented as being sufficient to protect
Contractor. Contractor is advised to consult Contractor's insurance broker to determine adequate
coverage for Contractor.
11. PROHIBITION AGAINST TRANSFERS:
Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest
therein, directly or indirectly, by operation of law or otherwise, without prior written consent of
Manager. Any attempt to do so without said consent shall be null and void, and any assignee,
sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer. However, claims for money by Contractor from Manager
under this Agreement may be assigned to a bank, trust company or other financial institution without
prior written consent. Written notice of such assignment shall be promptly furnished to Manager by
Contractor.
The sale, assignment, transfer or other disposition of any of the issued and outstanding capital
stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or
cotenant, if Contractor is a partnership or joint venture or syndicate or cotenancy, which shall result
in changing the control of Contractor, shall be construed as an assignment of this Agreement.
Control means fifty percent (50 %) or more of the voting power of the corporation.
12. SUBCONTRACTOR APPROVAL:
Unless prior written consent from City is obtained, only those people and subcontractors
whose names are listed in Contractor's bid shall be used in the performance of this Agreement.
Requests for additional subcontracting shall be submitted in writing, describing the scope of
work to be subcontracted and the name of the proposed subcontractor. Such request shall set forth
the total price or hourly rates used in preparing estimated costs for the subcontractor's services.
Approval of the subcontractor may, at the option of Manager, be issued in the form of a Work Order.
5
In the event that Contractor employs subcontractors, such subcontractors shall be required to
furnish proof of workers' compensation insurance and shall also be required to carry general and
automobile liability insurance in reasonable conformity to the insurance carried by Contractor. In
addition, any work or services subcontracted hereunder shall be subject to each provision of this
Agreement.
13. PERMITS AND LICENSES:
Contractor, at its sole expense, shall obtain and maintain during the term of this Agreement,
all appropriate permits, certificates and licenses, including a City of Alameda Business License that
may be required in connection with the performance of services hereunder.
14. REPORTS:
Each and every report, draft, work product, map, record and other document reproduced,
prepared or caused to be prepared by Contractor pursuant to or in connection with this Agreement
shall be the exclusive property of the ARRA.
No report, information or other data given to or prepared or assembled by Contractor
pursuant to this Agreement shall be made available to any individual or organization by Contractor
without prior approval by the ARRA or Manager.
Contractor shall, at such time and in such form as the ARRA or Manager may require, furnish
reports concerning the status of services required under this Agreement.
15. RECORDS:
Contractor shall maintain complete and accurate records with respect to sales, costs,
expenses, receipts and other such information required by City that relate to the performance of
services under this Agreement.
Contractor shall maintain adequate records of services provided in sufficient detail to permit
an evaluation of services. All such records shall be maintained in accordance with generally
accepted accounting principles and shall be clearly identified and readily accessible. Contractor shall
provide free access to such books and records to the representatives of City or its designees at all
proper times, and gives City the right to examine and audit same, and to make transcripts there from
as necessary, and to allow inspection of all work, data, documents, proceedings and activities related
to this Agreement. Such records, together with supporting documents, shall be kept separate from
other documents and records and shall be maintained for a period of three (3) years after receipt of
final payment.
If supplemental examination or audit of the records is necessary due to concerns raised by
The ARRA or Manager's preliminary examination or audit of records, and the ARRA or Manager's
supplemental examination or audit of the records discloses a failure to adhere to appropriate internal
financial controls, or other breach of contract or failure to act in good faith, then Contractor shall
reimburse The ARRA for all reasonable costs and expenses associated with the supplemental
6
examination or audit. This section limits the records available to payroll, invoices, contracts, or
manufacture correspondences to the project covered under this Agreement.
16. NOTICES:
All notices, demands, requests or approvals to be given under this Agreement shall be given
in writing and conclusively shall be deemed served when delivered personally or on the second
business day after the deposit thereof in the United States Mail, postage prepaid, registered or
certified, addressed as hereinafter provided.
All notices, demands, requests, or approvals from Contractor to Manager shall be addressed
to Manager at:
PM Realty Group L.P.
333 Bush Street, Suite 1510
San Francisco, CA 94104
Attention:
All notices, demands, requests, or approvals from Manager to Contractor shall be addressed
to Contractor at:
Attention:
17. SAFETY REQUIREMENT
All work performed under this Agreement shall be performed in such a manner as to provide
safety to the public and to meet or exceed the safety standards outlined by CAL -OSHA. Manager
reserves the right to issue restraints or cease and desist orders to Contractor when unsafe or harmful
acts or conditions are observed or reported relative to the performance of the work under this
Agreement.
Contractor shall maintain the work sites free of hazards to persons and /or property resulting
from his or her operations. Any hazardous condition noted by Contractor, which is not a result of his
or her operations, shall .immediately be reported to Manager.
18. REQUIREMENT TO PAY PREVAILING WAGE
Consistent with the ARRA's policy to pay prevailing wage rates, Contractor shall comply
with the City of Alameda Labor Compliance Program and all other requirements set forth in Labor
Code section 1770 et seq. The Manager shall require payment of the general rate of per diem wages
or the general rate of per diem wages for holiday and overtime work. Contractor will submit
monthly certified payroll records to the Manager or all employees and subcontractors in a
preapproved format or a City of Alameda provided foul'. Any delay in remitting certified payroll
reports to the Manager upon request from the Manager will result in either delay and /or forfeit of
7
outstanding payment to Contractor.
19. URBAN RUNOFF MANAGEMENT:
The Contractor shall avoid creating excess dust when breaking asphalt or concrete and during
excavation and grading. If water is used for dust control, contractor shall use as little as necessary.
Contractor shall take all steps necessary to keep wash water out of the streets, gutters and storm
drains.
The Contractor shall develop and implement erosion and sediment control to prevent
pollution of storm drains. Such control includes but is not limited to:
A. Use storm drain inlet protection devices such as sand bag barriers, filter fabric fences,
block and gravel filters. (Block storm drain inlets prior to the start of the rainy season (October 15),
in site de- watering activities and saw - cutting activities; shovel or vacuum saw -cut slurry and remove
from the site).
B. Cover exposed piles of soil or construction material with plastic sheeting. All
construction materials must be stored in containers.
C. Sweep and remove all materials from paved surfaces that drain to streets, gutters and
storm drains prior to rain as well as at the end of the each work day. At the completion of the
project, the street shall be washed and the wash water shall be collected and disposed of offsite in an
appropriate location.
D. After breaking old pavement, Contractor shall remove all debris to avoid contact with
rainfall or runoff.
E. Contractor shall maintain a clean work area by removing trash, litter, and debris at the
end of each work day. Contractor shall also clean up any leaks, drips, and other spills as they occur.
The objective is to ensure that the City and County of Alameda County -Wide Clean Water
Program is adequately enforced. These controls should be implemented prior to the start of
construction, up- graded as required, maintained during construction phases to provide adequate
protection, and removed at the end of construction.
These recommendations are intended to be used in conjunction with the State's Best
Management Practices Municipal and Construction Handbooks, local program guidance materials
from municipalities, Section 7.1.01 of the Standard Specifications and any other appropriate
documents on storm water quality controls for construction.
Failure to comply with this program will result in the issuance of noncompliance notices,
citations, project stop orders or fines. The fine for noncompliance of the above program is two
hundred and fifty dollars ($250.00) per occurrence per day. The State under the Federal Clean Water
Act can also impose a fine on the contractor, pursuant to Cal. Water Code § 13385.
8
20. COMPLIANCE WITH MARSH CRUST ORDINANCE:
Contractor shall perform all excavation work in compliance with the City of Alameda's
Marsh Crust Ordinance as set forth at Section 13 -56 of the Municipal Code. Prior to performing any
excavation work, Contractor shall verify with the Building Official whether the excavation work is
subject to the Marsh Crust Ordinance. Contractor shall apply for and obtain pemiits from Building
Services on projects deemed to be subject to the Marsh Crust Ordinance.
21. TERMINATION:
In the event Contractor fails or refuses to perform any of the provisions hereof at the time and
in the manner required hereunder, Contractor shall be deemed in default in the performance of this
Agreement. If such default is not cured within a period of two (2) days after receipt by Contractor
from Manager of written notice of default, specifying the nature of such default and the steps
necessary to cure such default, Manager may terminate the Agreement forthwith by giving to the
Contractor written notice thereof.
Manager shall have the option, at its sole discretion and without cause, of terminating this
Agreement by giving seven (7) days' prior written notice to Contractor as provided herein. Upon
termination of this Agreement, each party shall pay to the other party that portion of compensation
specified in this Agreement that is earned and unpaid prior to the effective date of termination.
22. COMPLIANCES:
Contractor shall comply with all laws, state or federal and all ordinances, rules and
regulations enacted or issued by the ARRA, City of Alameda, or Manager.
23. CONFLICT OF LAW:
This Agreement shall be interpreted under, and enforced by the laws of the State of California
excepting any choice of law rules which may direct the application of laws of another jurisdiction.
The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and
regulations of the authorities having jurisdiction over this Agreement (or the successors of those
authorities.) Any suits brought pursuant to this Agreement shall be filed with the courts of the
County of Alameda, State of California.
24. ADVERTISEMENT:
Contractor shall not post, exhibit, display or allow to be posted, exhibited, displayed any
signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services
performed under this Agreement unless prior written approval has been secured from The ARRA or
Manager to do otherwise.
25. WAIVER:
A waiver by The ARRA or Manager of any breach of any term, covenant, or condition
contained herein, shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant, or condition contained herein, whether of the same or a different character.
9
26. INTEGRATED CONTRACT:
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held
to vary the provisions hereof. Any modification of this Agreement will be effective only by written
execution signed by both Manager and Contractor.
27. INSERTED PROVISIONS:
Each provision and clause required by law to be inserted into the Agreement shall be deemed
to be enacted herein, and the Agreement shall be read and enforced as though each were included
herein. If through mistake or otherwise, any such provision is not inserted or is not correctly
inserted, the Agreement shall be amended to make such insertion on application by either party.
28. CAPTIONS:
The captions in this Agreement are for convenience only, are not a part of the Agreement and
in no way affect, limit or amplify the terms or provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the day
and year first above written.
CONTRACTOR
MANAGER:
PM REALTY GROUP, L.P., as agent for
for the Alameda Reuse and Redevelopment
Authority.
By By:
Name: Name:
Title Title:
10
Alameda Reuse and Redevelopment Authority
Interoffice Memorandum
January 20, 2004
TO: Honorable Chair and Members of the
Alameda Reuse and Redevelopment Authority
FROM: James M. Flint
Executive Director
4
SUBJ: Report from the Executive Director on the Status and Purpose of the
Navy's Restoration Advisory Board for Alameda Point
Background
The ARRA Board requested a report from staff on the Restoration Advisory Board and its
function. The RAB is a volunteer group formed and supported by the Navy to provide
community input to the environmental restoration/ remediation process. The RAB
supplements the formal CERCLA requirements for public involvement. The formation
and operation of the RAB is governed by Department of Defense policies and guidelines.
Those guidelines state that RABs will be established at all closing and realigning bases
where property will be available for transfer to the community. The RAB will work in
partnership with the Base Cleanup Team (BCT) on cleanup issues and related matters.
The BCT is composed of the Environmental Protection Agency (EPA), the California
Environmental Protection Agency, Department of Toxic Substances Control (DTSC), the
Regional Water Quality Control Board, and the Navy. The City and the RAB attend and
participate in the BCT meetings. Through the RAB, stake holders review progress and
have a voice in the decision - making process. Each RAB has a Navy staff co -chair and a
community co- chair, elected by the RAB. The Navy provides administrative support to
the RAB for minutes, agendas, room arrangements, and public noticing of meetings.
There are two RABs and two BCTs for Alameda: one for the former NAS and one for
the FISC Annex facility. Each RAB meets once a month. Meetings are open to the
public and are publicly noticed in the Alameda Journal. The NAS RAB meets in the
evening at Alameda Point, in Room 140, City Hall West.
Discussion
The NAS (Alameda Point) RAB is comprised of representatives from the APAC,
community members, and environmental group representatives. Representatives of the
City of Alameda, the Alameda Point Collaborative, and the BCT attend RAB meetings
and participate in a non - voting capacity.
Dedicated to Excellence, Committed to Services
Honorable Chair and Members of the
Alameda Reuse and Redevelopment Authority
January 20, 2004
Page 2
The RAB reviews and responds to the studies produced by the Navy for the
environmental cleanup. RAB members often foiui sub - groups whose responsibility is to
read the particular study and meet with the Navy for more in -depth discussion of the
issues. The RAB will then submit comments to the Navy and the regulators on specific
documents. The RAB is eligible for funding from the DoD through the TAPP grant
process, through which the RAB has received grants enabling it to hire outside
environmental experts to review documents and help the RAB prepare comments.
Most Navy studies are presented by Navy project managers or consultants to the RAB at
its regular meetings in order to answer questions and provide additional information
where necessary. A stated goal of the RAB is to create more community interest and
participation in the cleanup process. To this end, the RAB recently voted to move its
meeting date so it does not conflict with the City Council meeting dates.
Recommendation
This report is for information only and no action is required.
Respectfully submitted,
JF/PB/EJ /IF
Attachments: RAB Roster
/aul Benoit
Deputy Executive Director
By,
Elizabeth Johnson
Base Reuse Planner
Dedicated to Excellence, Committed to Services
G: \Comdev \Base Rcuse& Redevp\ Elizabeth Johnson \RABtoARRAsrt- 22- 04.DOC
1
ALAMEDA POINT
RESTORATION ADVISORY BOARD
CONTACT LIST
EMAIL
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COENEILG @aol.com
adailey@alameda.k12.ca.us
DC2Doug @Aol.com
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HGKMOR @aol.com
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510 -523 -3312
510 -521 -2380
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ADDRESS
136 Santa Clara Avenue
Alameda, CA 94501
657 Tarryton Isle
Alameda, CA 94501
1027 Post Street
Alameda, CA 94501
2200 Central Avenue
Alameda, CA 94501
3010 Fairview
Alameda, CA 94501
1305 Dayton Avenue
Alameda, CA 94501
3142 California Street
Oakland, CA 94602
25 Captains Drive
Alameda, CA 94502 -6417
P. O. Box 2859
Alameda, CA 94501
833 Market St. #1107
San Francisco, CA 94103
301 Grand Street
Alameda CA 94501
1625 Santa Clara Ave., #2
Alameda, CA 94501
208 Santa Clara Ave
Alameda, CA 94501
3050 Lynde St.
Oakland, CA 94601
it.444
Ingrid Baur
Clem Burnap
Neil Coe
Ardella Dailey
Nick DeBenedittis
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Tony Dover
George Humphreys
James Leach
Lea Loizos
Bert Morgan
Ken O'Donoghue
Kurt Peterson
Kevin Reilly
WJASmith @Aol.com
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Jean_Sweeney @juno.com
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Jimsweeney2 @juno.com
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510 -522 -1579
510 -522 -1579
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Michael John Torrey
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Thomas.macchiar
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619 -532 -0951
619 -532 -0935
619 -532 -0953
619 -532 -0907
619 -532 -0965
619 -532 -0963
619 -532 -0952
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Greg Lorton (Lead RPM)
Thomas Macchiar
Darren Newton (RPM)
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Last updated 12/01/03
ALAMEDA POINT
RESTORATION ADVISORY BOARD
CONTACT LIST
Last updated 12/01/03
EMAIL
Regulators and Other Agencies
cook.anna-marie@epa.gov
ripperda.mark @epa.gov
serda.sophia@epa.gov
JCH @rb2.swrcb.ca.gov
rjaulus@apcollaborative.org
ejohnson@ci.alameda.ca.us
mliao @dtsc.ca.gov
Tetra Tech EiVIInc.
- - - -- -- - -- - - --
tracy.craig @ttemi.com
tracycraig @sbcglobal.net
beth.kelly @ttemi.com
lona.pearson @ttemi.com
PHONE
415- 972 -3029
(415) 972 -3028
(415) 744 -2307
(415) 744 -2179
510- 622 -2363
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510- 749 -5903
510-540-3767
510- 222 -8469
916 -853 -4525
916- 853 -4557
ADDRESS
75 Hawthorne Street
San Francisco, CA 94105-3901
75 Hawthorne Street
San Francisco, CA 94105 -3901
75 Hawthorne St.
San Francisco, CA 94105 -3901
75 Hawthorne Street
San Francisco, CA 94105 -3901
1515 Clay St., Suite 1400
Oakland, CA 94612
970 Ramona Way
San Leandro, CA 94577
950 W. Mall Square, Bldg.1,
Alameda Pt, Alameda, CA 94501
700 Heinz Avenue, Suite 200
Berkeley, CA 94710
10670 White Rock Road
Rancho Cordova, CA 95670
10670 White Rock Road
Rancho Cordova, CA 95670
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Anna -Marie Cook
EPA
Mark Ripperda
EPA
Sophia Serda
EPA
David Cooper
EPA
Judy Huang
RWQCB
Rersin Jaulus- Gonzalez
Alameda Point Collaborative
Elizabeth Johnson
City of Alameda
Marcia Liao
DTSC
Tracy Craig
Beth Kelly
Lona Pearson
AGENDA
Special Meeting of the Governing Body of the
Alameda Reuse and Redevelopment Authority
Alameda City Hall
Council Chamber, Room 391
2263 Santa Clara Avenue
Alameda, CA 94501
. ROLL CALL
2. Public Comment on Agenda Items Only.
Tuesday, February 17, 2004
Meeting will begin at 7:29 p.m.
City Hall will open at 7:14 p.m.
Anyone wishing to address the Board on agenda items only, may speak for a
maximum of 3 minutes per item
3. CONSENT CALENDAR
3 -A. Recommendation to authorize the Executive Director to execute a ten year lease for Hangar
21 with St. George Spirits, Inc.
4. REGULAR AGENDA ITEMS
None.
5. ADJOURNMENT
This meeting will be cablecast live on channel 15. The next regular ARRA meeting is
scheduled for Wednesday, March 3, 2004.
Notes:
Please contact ARRA Secretary, Emily Parodi at 749 -5800 or 522 -7538 at least 72 hours prior to
the meeting to request agenda materials in an alternative format, or any other reasonable
accommodation that may be necessary to participate in and enjoy the benefits of the meeting.
• Sign language interpreters will be available on request. Please contact Emily Parodi, ARRA
Secretary, or Development Services 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.
Alameda Reuse and Redevelopment Authority
Interoffice Memorandum
February 10, 2004
TO: Honorable Members of the
Alameda Reuse and Redevelopment Authority
FROM: James M. Flint, Executive Director
3 -A
SUBJ: Recommendation to Authorize the Executive Director to Execute a Ten Year
Lease for Hangar 21 with St. George Spirits, Inc.
Background
St. George Spirits is currently located in a 20,000 square foot facility within Rosenblum Cellars
on Main St. in Alameda. St. George Spirits produces many products, including eau de vie, single
malt, and Hangar One Vodka. They have recently experienced a ten -fold increase in sales
necessitating a move to a larger space. Hangar 21 was formerly used by the Navy for aircraft
maintenance and recently by Kitz Corporation for the manufacture of large valves for the electric
and petrochemical industry. The ARRA Governing Body must approve this lease because the
proposed lease term exceeds seven (7) years.
Discussion
In initial negotiations with Alameda Point Community Partners and ARRA staff, St. George
requested a purchase option for Hangar 21. However, because the capital investment in this
building will be small in comparison with AVTS and Bladium, who have purchase options, St.
George Spirits' purchase option request was rejected. Instead, leasing staff offered a ten (10)
year lease, with a right of first offer to purchase, which is consistent with the development plan
for the property identifying long -term adaptive reuse of the building. In addition, Building 21 is
located on the west hangar row of Alameda Point, bordering the wildlife refuge and in the
historic district.
Fiscal Impact
The gross rental revenue to be generated over the ten -year term of the proposed lease with St.
George Spirits is $3,940,560. The lease provides for reimbursement of a maximum of $30,000 to
St. George Spirits to cover shell upgrades. The $30,000 reimbursement to St. George Spirits will
be amortized over five years as credit against their rent. The net income from this lease over a
ten -year period (after deducting rent credits) will be $3,910,560.
Honorable Members of the
Alameda Reuse and Redevelopment Authority
February 10, 2004
Page 2
Recommendation
The Executive Director recommends that the ARRA Governing Body authorize the Executive
Director to enter into a ten (10) year lease for Hangar 21 with St. George Spirits.
Respectfully submitted,
Pau :' enoit
Dep ty Executive Directo
By: Nanette Banks
Finance & Administration Division Manager
Attachment: Site Maps
JMF /PB /dc
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