EXCLUSIVE NEGOTIATION AGREEMENT
BY AND AMONG
THE CITY OF ALAMEDA,
AND
BROOKFIELD BAY AREA HOLDINGS LLC
AND
CATELLUS DEVELOPMENT CORP
This EXCLUSIVENEGOTIATIONAGREEMENT("Agreement")is entered into by and among the City ofAlameda,a municipalcorporation("City"),and BrookfieldBay Area Holdings LLC, a Delaware limited liabilitycompany ("Brookfield") and Catellus DevelopmentCorp, a Delawarecorporation("Catellus")(individuallyand/or collectively, "Developer"), as of the EffectiveDate (defined in Section 1). City and Developer sometimes are referred to collectivelyas the "Parties" and either individuallyas a "Party."
RECITALS
A. City is the owner of certain real property located within the City of Alameda, State of California commonly referred to as the former Alameda Naval Air Station, now known as Alameda Point. The property that is the subject of this Agreement is the West Midway development area, an approximately 22.8-acre property located in the Main Street Neighborhood sub-district, which is depicted for convenience in ExhibitA ("Property").
B. In February 2014, the Alameda City Council approved a Master Infrastructure Plan, General Plan Amendment, Zoning Ordinance Amendment and certified an Environmental Impact Report for Alameda Point, including the Property. On March 21, 2017, City Council approved the Main Street Neighborhood Specific Plan. These documents (collectively, "Planning Documents") all relate to potential development of the Property. Developer understands that any proposed Project (as described below) must be consistent with the Planning Documents.
C. Developer has demonstrated to City its experience with successfully developing properties similar to the Property, as shown by its statement of qualifications submitted to City on March 30,2020. Developer seeks to develop the Property with a mixed-use, mixed-income residential neighborhood with two-hundred and ninety-one (291) residential units and up to five hundred thousand square feet (500,000 square feet) of commercial space ("Project").
D. Concurrently with development of the Project, a non-profit developer that includes Mid-Pen, Alameda Point Collaborative, Building Futures for Women and Children and Operation Dignity (collectively, "Collaborating Partners"), will develop a 9.7 acre site and construct 267 low and very-low income units ("RESHAP Site"). 099999\U775942vll
E City and Developerseekto negotiateatransferof the Propertyfrom City toDeveloperfor developmentof the Project. The Partiesintendto negotiatemutuallyacceptabletermsand conditionsfor the transferand developmentof the Projectby firstnegotiatinga"Term Sheet"and thereafternegotiatingaDispositionand Development Agreement ("DDA").
NOW, THEREFORE,in considerationof the foregoing,which are incorporated herein by reference,and the promises,covenants,and provisionssetforth below,thereceiptand adequacyofwhich considerationis acknowledged,Developerand City agree as follows.
AGREEMENT
1 Term. The term of this Agreementshall commenceon the date City Council approvesthisAgreement{the "EffectiveDate") and shallextendfor eighteen(18) monthsthereafterunlesssoonerterminatedorextendedas hereinprovided("Initial Term").
2 ExtendedTerm. The InitialTerm plus any and all extensionsof the InitialTerm under this Section2 are referredto collectivelyas the"Term." The InitialTerm may be extendedtwo (2) timesfor up to three (3) monthseach time, which may be grantedin the City Manager'sor designee'sreasonablediscretion,so long as Developeris continuingto negotiate in good faith.
3. Intentionally Omitted.
4. Negotiationof Term Sheet. Duringtheinitialsix (6) monthsof theTerm, the Parties shall negotiatea proposedTerm Sheetfor submittalto City Councilfor its consideration.The Term Sheet will establishall materialand essential business terms,timing and frameworkfor the transferand developmentof the Property,and will definethefinancial,legal, operationalandadministrativemechanismsto implementsuch transferand development.Asummaryof non-bindingkey termsto be includedin theTerm Sheet(and subsequentlyincorporatedinto the DDA) is attached as Exhibit B.The Term Sheet shall also include(a) requirementsand conditionsfor a proposedDevelopmentPlan, as more fully describedin Alameda MunicipalCode Section30-4.13(j)("DevelopmentPlan")for the Project,(b) a "PhasingPlan" for the Project,and (c) a "MilestoneSchedule"for each phaseof the Project.Developerunderstandsand agreesthatthe City Managershall have the right todeterminein his/hergood faith, reasonablediscretionif the proposedTerm Sheet is completeand sufficientlyconsistentwith the intentdescribedin this Section4 to be placedon a City Councilagenda.At the end of the initialsix (6) monthsofthe Term (unlessextendedin the reasonablediscretionof the City Manageror designeeand so long as Developeris continuingto negotiatein good faith), if (a) a proposedTerm Sheetis not placedon a City Councilagendaby the City Managerin accordancewith this Section4; (b) City Councildoes not approvea proposedTerm Sheet;or(c) City Councildoes not conditionallyapprovea proposedTerm Sheetwith directionbeing 099999\l1775942vll
given to staff as to requiredmodificationswhere such modificationsare made and a Term Sheetexecutedby Developerthereafterwithin a reasonableperiod oftime, then the City shall have the rightto terminatethis Agreementby written noticeto1 Developer,in which casethe Partiesshall have no further rights and obligationsone to another pursuant to this Agreement.
5. Negotiationofthe DDA. During the Term, the Partiesshall negotiatethe proposed terms of the DDA for submittal to City Council for its consideration. The DDA will documentthe materialandessentialbusinessterms and frameworkfor thetransfer, timing and developmentofthe Property,and will definethe financial, legal, operationaland administrativemechanisms to implementsuch transferand developmentThe DDA shall includethe final (a) PhasingPlan for the Project,(b) Milestone Schedule for each phase ofthe Project,and (d) FinancingPlan for the Project. Developerunderstandsand agrees that theCity Managershall have the rightto determinein his/herreasonablediscretionifthe proposedDDA is complete and sufficientlyconsistent with the intentdescribed in this Section 5 to beplaced on a City Councilagenda.At the end of theTerm, if(a) ifthe City Managerdoes not place a proposed DDA, includinga Phasing Plan, MilestoneSchedule and FinancingPlan, on a City Councilagenda in accordancewith this Agreement; or(b) City Councildoes not approve a proposed DDA, includinga Phasing Plan, Milestone Schedule, and FinancingPlan, then this Agreement shall expire and the Parties shall have no further rights and obligations one to another pursuantto this Agreement.
6. Processing of Development Plan. Subdivision Map and Development Agreement.
6.1 During the Term, Developer shall apply for and City shall process a Development Plan for the Project for consideration by the Planning Board.
If during the Term the Planning Board (or the City Council on appeal) does not approve a Development Plan, then this Agreement shall expire, and the Parties shall have no further rights and obligations to the other pursuant to this Agreement
6.2 During the Term, Developer may apply for and, if so, City shall process a Development Agreement and/or subdivision map for the Project for consideration by the Planning Board and, in the case of a Development Agreement, the City Council. Ifduring the Term Developer applies for but the City does not approve a Development Agreement and/or subdivision map for the Project, then Developer shall have the rightto terminate this Agreement, in which case the Parties shall have no further rights and obligations to the other pursuant to this Agreement.
7. Citv Responsibilities. During the Term, City shall do the followingto further the negotiation process:
7.1 Exclusive Negotiations. City shall negotiate exclusively with Developer regarding the Project, the Property, and the terms of the Term Sheet and DDA and shall not solicit, market to or negotiate with any other person or entity regarding the Project or the Property or solicit or entertain bids or proposals to do so. 099999\ll775942vU
72 Retentionof DiscretionaryAuthority. City shall negotiatein good faith with Developerduringthe Term with respectto the Term Sheet,DDA, DevelopmentPlan,DevelopmentAgreement(if applicable),subdivisionmap (if applicable)and any otherProjectentitlementsDevelopermay reasonablyelectto applyfor duringthe Term.Developerunderstandsand agreesthatby enteringinto this Agreement City ismaking no commitmentthat it will approveaTerm Sheetor aDDA, includinga,FinancingPlan, PhasingPlan and/orMilestoneSchedulefor the Project,or aDevelopmentPlan, DevelopmentAgreementor subdivisionmap forthe Project City specificallyretainsthe rightto approveor deny a proposedTerm Sheetand/orDDA,includinga PhasingPlan and/orMilestoneScheduleand/orFinancingPlan, approveor denya DevelopmentPlan, DevelopmentAgreementand/orsubdivisionmap,and/orto approvean alternative(s)and/orto imposeany conditionsor mitigation measuresupon the Projectin accordancewith the discretionaccordedto City pursuant toapplicablelaw.
8. nfivaloperResponsibilities.During the Term, Developershalldo the following,at its sole expense, tofurtherthe negotiationprocess:
8.1 Non-RefundableDepositsto OffsetCitv Expenses.
8.1.1 City acknowledgesthat Developerpaid to City a non refundabledepositofTwenty-FiveThousandDollars
($25,000)upon City'sselectionofDeveloperto
negotiatethisAgreement("FirstDeposit").
8.1.2 Within thirty (30) days afterexecutionof this Agreement by all parties,Developershallwire transferto City a
non-refundabledepositofTwenty-FiveThousand
Dollars($25,000)("Second Deposit").
8.1.3 Withinfive (5) businessdays afterapprovaland
execution of the Term Sheet by all parties in
accordance with Section4 herein, Developershallwire
transferto City a non-refundabledepositof Seventy-
Five ThousandDollars($75,000)("Third Deposit",and
collectivelywith the First Depositand theSecond
Deposit,the "Deposits").
8.1.4 If paymentis not receivedby City within the time
periodsspecifiedin Sections8.1.2and 8.1.3 above,this
Agreementshall immediatelyterminate.The Deposits
will assist City in offsettingCity staffand outsidelegal and consultantexpenses associated with this
Agreementand negotiationof the Term Sheetand
DDA; however,Developerunderstandsand agrees that
the Deposits are non-refundable.
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8.2 Minimum Due Diligence Expenditure. During the first five (5) months of the InitialTerm, Developer agrees to invest no less than Twenty-Five Thousand Dollars ($25,000.00) per month ("Minimum Due Diligence Expenditure") in due diligence investigations of the Project and the Property, which may include without limitationphysical due diligence, financialdue diligence, and entitlements due diligence and processing. By no later than the tenth (10th) day of each month during the InitialTerm, Developer shall provide to City an accounting of the Minimum Due Diligence Expenditure. Ifa monthly accounting is not timely received by City during each month of the InitialTerm, then the City shall have the right to terminate this Agreement by written notice to Developer. Ifthis Agreement terminates for any reason, Developer understands and agrees that the Minimum Due Diligence Expenditure is non-refundable.
8.3 Further Entitlements. Developer shall seek further entitlements, as needed, for development of the Project, including but not limited to, preparation of a proposed Development Plan. Developer understands and agrees that, subject to any Development Agreement approved by Cityfor the Project, the Project will be required to conform to City's approval processes and ordinances and be consistent with City's Zoning Ordinance, General Plan, Alameda Point Master Infrastructure Plan, Main Street Specific Plan and other specific plans applicable to the Property as now approved, or as may be in effect at the time Developer submits a preliminary application (or completed application, if Developer does not submit a preliminary application) for the Project.
8.4 Due Diligence. Developer shall conduct any and all investigations it deems necessary to negotiate the terms of the Term Sheet and DDA regarding the physical conditionof the Property and the condition of title to the Property at the time of transfer. IfDeveloper's due diligence requires entry on the Property, Developer will be required to sign a Right of Entry with City in a form provided byCity, which shall include City's standard indemnification and insurance requirements. In connection with such due diligence, Developer shall have the rightto terminate this Agreement upon five (5) business days' priorwritten notice to City ifDeveloper, in its sole discretion, determines that the Project is not feasible. Upon such termination by Developer, (i) Developer shall have no obligation to pay any Deposit or make anyMinimum Due DiligenceExpenditurethat is not yet due pursuant to Sections 8.1 and 8.2 above, and(ii) Developershall deliver to City copies of diligencematerials regarding the Property prepared by or for Developerduringthe Term(providedthat Developershall be entitledto withholdany attorney-clientprivileged,attorney workproduct, confidential, and/or proprietary materials) and shall assign to Cityin writingDeveloper's rightsto such materials; providedthat Developer shall not be obligatedto deliver such materials to the City in the event of a City breach of its obligations pursuant to Section 7.1 herein.
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8.5 Transportation Demand Management Compliance Strategy. Developer shall prepare a Transportation Demand Management ("TDM") Compliance Strategy in compliance with the Alameda Point TDM Plan.
8.6 RESHAP Site. The Phasing Plan will be prepared in cooperation with the Collaborating Partners and will be designed to maximize their ability to finance the RESHAP Site. Phase 1 of the Project, at a minimum, will include construction of all backbone and in tract infrastructure improvements identified in the Term Sheet as necessary to support the RESHAP Site.
8.7 Financing and Project Pro Forma. Developer shall provide evidence, satisfactory to City, of the development team's financial ability to undertake and successfully complete the proposed Project, including the following:
• Financing Plan - including a pro forma for review and approval by City that includes sources (including evidence of commitments or availability) and uses for financing the Project and the rate of return requirement anticipated to be imposed on the Project.
• Financing Statement - submit audited (or if audited financial statement are not available, unaudited certified by Developer's chief financial officer) financial statements for the past two (2) years for each development entity that is part of the development team. Ifnot available, provide documented evidence of prior development transactions in which substantially all of the funding was obtained by Developer. Subject to any written confidentiality restrictions imposed on and in effect as to Developer, this information should identify the Project lenders and the size and material terms of the loans, as well as the equity investors, the equity investment amounts and the material terms applicable to the equity contribution.
8.8 ProjectTeam. Developer shall identify key individualson its Project team who will be dedicated to working with City during negotiation of the Term Sheet and negotiationand implementation of the DDA. Additionally, Developer shall provideCitywith a list of its intended consultants, including but not limitedto, architectural,engineering, legal, financialand construction.
8.9 Reports. At any time requested by City, but not more frequentlythan monthly, Developer shall make oral and summary form written progress reports advising City onall progress being made on the responsibilities listed in this Section 8.
Meetings. Developer and City staff, as needed, shall meet or hold a conference call approximately every two (2) weeks during the Term to negotiate the Term Sheet and the DDA and discuss the status of activitiesand tasks relatedto the negotiationsand 099999\11775942vll
the Project, the accomplishment of such activities and tasks and other such matters as City or Developer reasonably requests.
10. Representations and Warranties.
10.1 Duly Formed and Validly Existing. Brookfield represents and warrants that Brookfield Bay Area Holdings LLC, a Delaware limited liabilitycompany, is duly formed and validly existing under the laws of the State of Delaware and qualified to do business in California. Catellus represents and warrants that Catellus Development Corp, a Delaware corporation, is duly formed and validly existing under the laws of the State of Delaware and qualified to do business in California. Brookfield and Catellus each shall deliver to City satisfactory evidence to support their respective above representations.
10.2 Developer Authority. Developer represents and warrants that the person executing this Agreement, the Term Sheet and the DDA on behalf of Developer has or will have the full right, power and authority to execute this Agreement and to bind Developer hereunder. Developer agrees to provide City with evidence of this authority priorto execution of this Agreement, the Term Sheet and the DDA.
10.3 City Authority. City represents and warrants that the person executing this Agreement on behalf of City has the full right, power and authority to execute this Agreement and bind City hereunder and that all necessary Planning Board, City Council, and other City approvals have been obtained.
11. No Assignment. City is entering into this Agreement with Developer based on Developer's development experience and track record with similar developments.
City acknowledges and agrees that this Agreement is entered into with each of Brookfield and Catellus, and if either Brookfield or Catellus terminates this Agreement but the other party does not, this Agreement shall remain in full force and effect with the non-terminating Developer.
11.1 This agreement may be assigned to a joint venture comprised solely of Brookfield and Catellus (or their respective affiliates) without City approval, which joint venture will act as
Developer for purposes of developing the Project.
11.2 In addition, in the event that either Brookfield or Catellus terminates this Agreement but the other Developer does not, then upon receipt of the written approval of City (including delivery to City of relevant information reasonably requested by it), which approval shall not be unreasonably withheld, conditioned, or delayed, this Agreement may be assigned to a joint venture comprised of Brookfield or Catellus and an 099999VU 775942v 11
affiliateofthe non-terminatingDeveloperwhere such
Developerparty has day-to-daymanagementcontrolandresponsibilityof such affiliate),which jointventurewill act as Developerfor purposesofdevelopingthe Project.
11 3 Exceptas otherwiseprovidedherein,Developermay not sell,assign or transferany of its rightsor obligationsunderthis Agreement.
12 Notices All noticesrequiredor permittedunderthis Agreementshall be deliveredinhereon!by facsimile,email or overnightcourierwith written confirmationof receipt,orby registeredor certifiedmail, postageprepaid, return receiptrequested,to suchParty at its addressshown below, or to such otheraddressdesignatedin writingby such Party:
Notices to the City:
City of Alameda
2263 Santa Clara Avenue
Alameda, CA 94501
Attn: Eric J. Levitt,City Managerand
MichelleGiles, Base Reuse Manager, Base Reuse
Telephone: 510.747.7449
Email: [email protected]
With copies to:
City of Alameda
2263 Santa Clara Avenue
Alameda, CA 94501
Attn: Yibin Shen, City Attorney and
Lisa Nelson Maxwell, Assistant City Attorney
Telephone: 510.747.4750
Email: lmaxwell(5).alamedacitvattornev.org
Notices to Developer:
BrookfieldBay Area Holdings LLC
Josh Roden
500 La Gonda Way, Suite 100
Danville, CA 94526
Phone: (925) 743-8000
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Fax: (925) 743-8050
[email protected]
Catellus Development Corp
William Hosier
66 Franklin Street Suite 200
Oakland, CA 94607
Phone:(510)267-3401
Fax:(510)869-3401
[email protected]
Cox, Castle & Nicholson LLP
Margo Bradish
50 California Street, 32nd Floor
San Francisco, CA 94111
Telephone: (415) 262-5101
Facsimile: (415) 262-5199
[email protected]
Notice shall be deemed received and effective on delivery, if delivered personally or upon receipt of confirmation if by facsimile, email or overnight courier; or three (3) days after deposit into the United States mail if delivered by registered or certified mail.
13. Limitations of this Agreement.
13.1 Limitations of City's Commitment. City is not, by entering this Agreement, committing itself to or agreeing to undertake any other acts or activities requiringthe subsequent independent exercise of discretion by City or any agency or department thereof. This Agreement is merely an agreement to enter exclusive negotiations with respect to the Property according to the terms hereof, with all final discretion and approval in accordance with applicable law remaining with City Council as to any Term Sheet or DDA, includingPhasing Plan and Milestone Schedule, and Financing Plan and all proceedings and decisions in connection therewith and Planning Board as to the Development Plan. If negotiations under this Agreement result in a proposed Term Sheet and/or DDA, City Councilapproval thereof may occur only after compliance, as may be required, with all applicable laws and ordinances including, without limitation, CEQA.
13.2 Effect of Expiration or Termination. If this Agreement expires under Section 1 (as extended under Section 2) or is terminated under Section 4, 6, or 8, then neither Party shall have any further rights, obligations, or liabilityto the other Party under this Agreement.
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14. Miscellaneous Provisions.
14.1 EntireAgreement. This Agreementis the entireagreementas understood bythe Partieswith respectto the mattersset forth herein.
14.2 Amendments. This Agreementmay beamendedonly in awriting signed by all Partiesand approvedby City Council; providedthat extensionsof the Term on accordancewith Section2 or of thetime period for agreementon theTerm Sheet in accordancewith Section4 shall not requireCity Council approval;and furtherprovidedthatthe City Managershall havethe authorityto approveamendmentsthatthe City Managerdeterminesto be immaterial.
14.3 GoverningLaw. This Agreementshall be governedbyand interpretedin accordancewith the laws of the State ofCalifornia. Any action to enforce or interpretthis Agreementshall be broughtin a courtofcompetent jurisdictionin AlamedaCountyor, in the case ofany federal claims,in federal court for the Northern Districtof California.
14.4 Limitationon Remedies. In any action or otherlegal oradministrative proceedingto enforcethis Agreement,or that otherwisemay arise out of this Agreement,neitherCity nor Developershall be entitledto any damagesor monetaryrelief. It is understoodand agreedbythe Partiesthat this Agreementis onlyto enablethe Partiesto negotiatethe termsofa proposedTerm Sheetand a proposedDDA, includingPhasing Plan, MilestoneSchedule and FinancingPlan, and Development Plan, DevelopmentAgreement,subdivisionmap and other Projectentitlements, on anexclusivebasis during the Term. There is no commitmentthat any Term Sheet and/orDDA, includingPhasingPlan and MilestoneSchedule or DevelopmentPlan, subdivisionmap, DevelopmentAgreementor other entitlementswill be approvedand no damages,monetaryreliefor specific performanceshall beavailableto Developeror City if aTerm Sheetand/or DDA, Phasing Plan and MilestoneSchedule,or DevelopmentPlan, subdivisionmap, DevelopmentAgreementorany otherentitlementsare not approved during the Term.
14.5 Waiverof Lis Pendens. It is expressly understoodand agreed by the Partiesthat no lis pendensshallbe filed againstanyportionofthe Property with respectto this Agreementorany disputeor act arising from it.
14.6 Commissions.NeitherPartyshallbe liable for any real estate commissions or brokeragefees that may arise from this AgreementoranyTerm Sheet or DDA resultingfrom this Agreement. The Partiesrepresentand warrant thatthey have not engagedany brokers,agentsor finders in connection with thistransaction. Developershalldefend (with counsel acceptableto City) and hold City harmlessfrom any claims by any broker,agentor finder retainedby Developer. City shalldefendand hold Developerharmless from any claimsby anybroker,agent orfinder retainedby City. 099999\il775942vll
14.7 Attorneys' Fees. In any action or other legal or administrative proceeding to enforce this Agreement, or that otherwise may arise out of this Agreement, each Party shall pay its own attorneys1 fees and costs.
14.8 Headings. The section headings in this Agreement are for convenience only; they do not explain, modify, or add to the meaning of this Agreement.
14.9 Interpretation. This Agreement is the result of the combined efforts of the Parties. If any provision is found ambiguous, the ambiguity will not be resolved by construing this Agreement in favor of or against either Party, but by construing the terms according to their generally accepted meaning.
14.10 Time Periods. Any time period to be computed under this Agreement shall be computed by excluding the first day and including the last day. If the last day falls on a Saturday, Sunday or legal holiday, the last day will be extended until the next day City is open for business. All references to days in this Agreement shall mean calendar days unless otherwise expressly specified. City offices are closed on Fridays and therefore any reference to business days shall mean Monday through Thursday, unless one of those days is a holiday observed by City.
14.11 Severability. The provisions of this Agreement are severable. The invalidityor unenforceability of any provision in this Agreement will not affect the other provisions.
14.12 Successors and Assigns. This Agreement is binding on and will inure to the benefit of the Parties and their respective successors. This Agreement cannot be transferred or assigned except as permitted by the terms of this Agreement.
14.13 Independent Capacity. Nothing in this Agreement is intended to or does establish the Parties as partners, co-venturers or principal and agent with each another.
14.14 Conflict of Interest. No officer or employee of City shall hold any financial interest in this Agreement (CaliforniaGovernment Code § 1090).
14.15 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement
14.16 Electronic Signatures. This Agreement may be executed by electronic signature, which shall be considered as an originalsignature for all purposes and shall have the same force and effect as an originalsignature.
Without limitation,"electronic signature" shall include faxed versions of an originalsignature orelectronicallyscanned and transmitted versions (e.g., via pdf) of an original signature.
099999\H775942vll
14.17 Exhibits. The followingexhibitsare attachedto this Agreementand incorporatedherein asthough set forth in full for all purposes:
[Signatureson following page]
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CITY:
CITY OF ALAMEDA,
a Californiamu/fi&fl^eorpotz
APPRO
CITY AT
_isa NelsofuMaxwell
Assistant City Attorney
DEVELOPER:
BROOKFIELD BAY AREA HOLDINGS LLC
a DelawarelimiJtelirliaJajlitycompany
regnry Glenn
VF/GEQ-
DEVELOPER:
CATELLUS DEVELOPMENT CORP
a Delaware corporation
By: Coun-rC^ 5iqned
Name: J
Title:
Bv: C.Oun-[e^ <£tQned
Name: J
Title:
099999V11775942v11
CITY:
CITY OFALAMEDA,
a Californiamunicipalcorporation
By: .
Eric J. Levitt
City Manager
APPROVEDAS TOFORM-
CITY ATTORNEY
By:
Lisa Nelson Maxwell
AssistantCity Attorney
DEVELOPER:
BROOKFIELDBAY AREA HOLDINGSLLC
a Delawarelimited liabilitycompany
By:
Name:~ "
Title: "
By:
Name:
Title:
DEVELOPER:
CATELLUSDEVELOPMENTCORP
a Delawarecoiporatjepr
LJJj<By:
Name:
Title: Executive Vice President
099999V11775942vl 1
Ii:
099999V11775942v 11
Exhibit A
Diagram of the Property
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Exhibit B
Summary of Non-Binding Key Terms for the DDA
1. Project Description
2. Developer Responsibilities
3. City Responsibilities
4. Property Description and Condition
5. Term of DDA
6. Phasing/Milestone Schedule
7. Infrastructure and Amenity Package
8. Land Transfer/Escrow
9. Financing
10. City Cost Reimbursement
11. Implementation Schedule
12. Insurance
13. Indemnity
14. Assignment and Transfer
15. Hazardous Materials
16. Backbone and in tract infrastructure improvements necessary to support the RESHAP Site
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DocuSign Envelope ID: E3AF4A80-B45D-4460-A17F-7753B6882402
DocuSign Envelope ID: 7E74E3D1-15AB-4089-B3EI-OFCD1EDB259D
THIRD AMENDMENT TO
EXCLUSIVE NEGOTIATION AGREEMENT
THIS THIRD AMENDMENT TO EXCLUSIVE NEGOTIATION
AGREEMENT (the "Third Amendment") is made effective as of 2022 by and amongst the City of Alameda, a California municipal corporation ("City"), and Brookfield Bay Area Development Holdings LLC, a Delaware limited liability company ("Brookfield") and Catellus Development Corp., a Delaware corporation ("Catellus") (individually and/or collectively, "Developer"), on the tetai'ns and provisions set forth below.
RECIT ALS
A. The City and t]ie Developer entered into that certain Exclusive Negotiation Agreement effective as of October 6, 2020 (the "Original Agreement"), pursuant to whicli City granted Developer exclusive negotiating rights for the proposed transfer of certain real propeity located within the City of Alameda, State of California commonly refetred to as t}ie former Alameda Naval Air Station, now known as Alameda Point. The property that is subject to the Original Agreement as amended herein is the West Midway development area (the "Property") as depicted in the Original Agreemeiit, for the planned development of a mixed-use, mixed-income residential neighborhood with two hundred and ninety-one (291) residential units and up to five hundred thorisand (500,000) square feet of commercial space on the Propeity.
B. Pursuant to Section 4 of the Original Agreement, the parties allotted the initial six (6) months of the Initial Term to negotiate a proposed Term Sheet (as defined in the Original Agreement).
B. Pursuant to Section 1 of the Original Agreement, tl'ie Initial Term (as defined in the Original Agreement) commenced on the date the City Council approved the Original Agreement, which approval occurred on October 6, 2020. Therefore, the Initial Term shall expire on April 6, 2022.
C. Pursuant to Section 4 of the Original Agreement, the City and Developer amended the Original Agreement to confirm the Initial Term and extend the period for negotiating the Term Sheet to October 6, 2021 ("First Amendment").
D. The City and Developer further amended the Original Agreement to extend the period for negotiating the Term Slieet to January 6, 2022, with an additional option for the City Manager to extend the negotiation period to April 6, 2022 ("Second Amendment").
E. The City and Developer have been negotiating in good faith; however, more time is needed to negotiate and complete the Term Sheet. Tlierefore, tlie parties desire to amend tlie Original Agreement to extend the Initial Term and the period for negotiating the Term Sheet. Section 2 of the Original Agreement authorizes the City Manager to 1 DocuSign Envelope ID: 7E74E3D1-15AB-4089-B3E1-OFCD1EDB259D extend the Initial Term two (2) times for up to three (3) montlis eacli time, so long as the Developer is continuing to negotiate in good fait}i.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises of the parties hereto, and of other good and valuable consideration, tlie receipt and sufficiency of which are acknowledged, the parties liereto, intending legally to be bound, agree as follows:
1. Pursuant to Section 2 of the Original Agreement, the City Manager liereby agrees to extend the Initial Term by three months. This extension shall expire on .haly 6, 2022.
2. Pursuant to Section 4 of the Original Agreement, the City Manager hereby agrees to extend the period for the parties to negotiate tlie Terin Slieet to July 6, 2022.
3. Except as otherwise specifically provided herein, all other terms and conditions of the Original Agreement shall remain in full force and effect and are hereby ratified and confirmed in all respects by tlie parties hereto.
4. This Tl'iird Amendment and any amendments liereto may be executed in several counterparts, each of wliich shall be deemed to be an original copy, and all of which together shall constitute one agreement binding on all paities hereto, notwithstanding that all parties shall not have signed tlie same counterpart. 2 DocuSign Envelope ID: 7E74E3D'l-15AB-4089-B3E1-OFCDIEDB259D IN WITNESS WHEREOF, the undersigned have executed tis Tliird Amendment as of the dote first written above,
CITY:
APPROVED AS TO FORM:
Name: Len Aslanian
Title: Assistant City Attorney
DEVELOPER:
BROOKFIELD BAY AREA HOLDINGS LLC
AByDela 7Ai:J(dliabilitycompany
CATELLUS DEVELOPMENT CORP.,
Name: $u Sars(xal
Title: Elf
3