FOURTH AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT
FOR ALAMEDA POINT - SITE A
This Fourth Amendment to Disposition and Development Agreement ("Fourth Amendment") is entered into as of October /Q, 2018 ("Effective Date"), by and between the City of Alameda, a California charter city (the "City"), and Alameda Point Partners, LLC, a Delaware limited liability company (the "Developer").
RECITALS
A. The City and the Developer have entered into that certain Disposition and Development Agreement for Alameda Point-Site A, dated as of August 6, 2015 (the "Original DDA"), as amended by that certain First Amendment to Disposition and Development Agreement, dated as of February 8, 2017, and effective as of March 9, 2017 (the "First Amendment"), and as further amended by that certain Second Amendment to Disposition and Development Agreement, dated as of July 19, 2017 (the "Second Amendment"), and as further amended by that certain Third Amendment to Disposition and Development Agreement, dated as of March 7, 2018 (the "Third Amendment") and clarified by Operating Memoranda dated September 16, 2015, October 26, 2015, March 6, 2017, December 8, 2017 and March 7, 2018 (collectively, the "Operating Memoranda"). The Original DDA, as so amended and clarified, is referred to herein as the "DDA." B. The DDA contemplates development of a 68-acre area within Alameda Point that extends generally from the Main Street entrance of Alameda Point to the eastern edge of the Seaplane Lagoon and includes 800 housing units (200 affordable), 600,000 square feet of commercial development, and extensive parks and utility infrastructure (Site A Project).
C. The Developer has closed escrow on Phase 1 and commenced construction of the Phase I Backbone Infrastructure and is diligently pursuing the completion of the same. However, the Developer has encountered certain previously unknown conditions related to the replacement and tying into the existing subsurface infrastructure. These unknown conditions, together with other matters beyond the Developer's control, have materially delayed the Developer's progress in completing the Phase I Backbone Infrastructure and ability to proceed with the close of escrow on Phase 2. Therefore, the Developer has elected to extend the Milestone Date for the Phase 2 close of escrow.
D. In recognition of these matters and the Developer's diligent efforts to respond to the same, the parties have entered into this Fourth Amendment to amend certain provisions of the DDA related to the Extension Payment related to the Phase 2 close of escrow and update the Milestone Schedule consistent with the related extension.
AGREEMENT
WITH REFERENCE TO THE FACTS RECITED ABOVE, the City and the Developer agree as follows:
1. Definitions. Capitalized terms not defined in this Fourth Amendment shall have the same meaning set forth in the DDA.
2. Extension Payment - Phase 2 Close of Escrow. Notwithstanding the provisions of the DDA to the contrary, the parties hereby agree that the Extension Payment made by the Developer with respect to the Milestone Date for the Phase 2 close of escrow extending the Phase 2 close of escrow for one year from October 1,2018 to October 1,2019 shall be calculated pursuant to Section 1.3(a)(2) of the Original Agreement and shall be fully applicable to the Ferry Terminal Payment.
3. Affordable Housing Tax Credit Reservation; Future Phases. The Qualified Affordable Housing Developer has submitted a request for an amendment to the DDA with respect to Block 8 concurrently with the consideration and approval of this Fourth Amendment, which request proposes (among other matters) the extension of the Affordable Housing Milestone Dates for the acquisition of financing for two phases of affordable housing to be located on Block 8. The proposed extended Affordable Housing Milestone Dates for securing the required financing are after the Milestone Schedule Date for the close of escrow on Phase 2. Therefore, if the City elects to approve the Qualified Affordable Housing Developer's request and thereby extends the Affordable Housing Milestone Schedule, Section 2.4 of the Third Amendment shall automatically be deleted and replaced with the following language:
"2.4 Future Phases. Notwithstanding anything set forth herein or in the DDA, the City shall have no obligation to convey Phase 3 of the Property until and unless a Tax Credit Reservation has been received and executed for the Affordable Housing Projects or the Affordable Housing Projects are otherwise fully funded for construction."
4. Revised Milestone Schedule. The City hereby approves the Milestone Schedule attached hereto as Exhibit A, which Milestone Schedule supersedes all prior Milestone Schedules.
5. Effect of Amendment. Except to the extent amended in this Fourth Amendment, the DDA shall remain in full force and effect. In the event of a conflict between this Fourth Amendment and the DDA, this Fourth Amendment shall control. [Signatures on next page]
IN WITNESS WHEREOF, the parties have executed this Fourth Amendment as of the Effective Date.
CITY OF ALAMEDA,
a California charter city
By:
•s
David L. Rudat
Interim City Manager
Recommended for Approval:
Debbie Potter, Base Reuse and Economic Development Director Approved as to Form:
Celena H. Chen,
Assistant City Attorney
Authorized by City Council Resolution No. W)
Signatures continue on next page
ALAMEDA POINT PARTNERS, LLC,
a Delaware limited liability company
By: Alameda Point Investments, LLC,
a California limited liability company,
its managing member
By: NCCH 100 Alameda, L.P.,
a Delaware limited partnership,
its managing member
By: Maple Multi-Family De
a Texas limited liabilit
lopment, L.L.C,
Name: &&CZ£±Q°fFH/V
Title: Vf
Exhibit A
Milestone Schedule
[See attached]
Exhibit A
Updated Milestone Schedule
This Milestone Schedule summarizes the schedule for various activities under the DDA.
This MilestoneScheduleshall not be deemedto modify in any way the provisions of the DDA to which such items relate. Section referencesherein to the DDA areintendedmerely as an aid in relating this Milestone Schedule to other provisionsof the DDA and shall not be deemed to have anysubstantiveeffect. Times for performanceare subjectto extensionsas set forth in Section 1.3 of the DDA.
Whenever this Milestone Schedule requires the submissionof plans or other documents at a specific time, such plans or other documents, as submitted, shall be complete and adequate for review by the City or other applicable governmental entity within the time set forth herein.
Prior to the time set forth for each particular submission, the Developer shall consult with City staff informally as necessary concerning such submission in order to assure that such submission will be complete and in a proper form within the time for submission set forth herein.
As provided in Section 1.4 of the DDA, this Milestone Schedule may be modified by Operating Memoranda executed in accordance with Section 18.16 of the DDA.
ACTION DATE
1. Deposit. The Developer shall deliver the
Deposit to the City. [§2.1]
Complete
2. Phase 0. Developer presents to the City
Council for its approval the Phase 0 Activities
Plan [§9.2]
Complete
3. Phase 0. Commence Phase 0 Activities Plan
[§9.2]
Complete
IHii^^^^^^^^^^^^^^^^^iliP
4. Submission - Phase Update to Financing
Plan. The Developer shall prepare and submit
the Phase Update to the Financing Plan for
Phase 1 for City approval. [§3.1(a)]
February 19, 2018 - Completed
5. Approval - Phase Update -Financing Plan.
The City shall approve or disapprove the Phase
Update to the Financing Plan for Phase 1. [§3.2]
March 7, 2018 - Completed
6. Submission - Public Financing Plan. The
Developers shall prepare and submit to the City
the Public Financing Plan [§3.2(c)]
October 11, 2016 - Completed
7. Approval - Public Financing Plan. The City
shall approve or disapprove the Public Financing
Plan. [§3.2]
March 7, 2017 - Completed
8. Navy Conveyance - Storm Drain Line. The
Developer shall notify the City of its intent to
remove the Storm Drain Line [§8.15]
Complete
ACTION DATE
9(a). Navy Conveyance
9(b). State Lands Exchange. The City shall
facilitate closing of the exchange of Tidelands
property within the Phase 1 property. [§10.4]
May 2, 2016 - Completed
June 28, 2016 - Completed
10. Application - Supplemental Approvals. The
Developer shall apply for the first Supplemental
Approvals necessary to construct the Backbone
Infrastructure for Phase 1 of the Project.
[§5.4(a)]
November 30, 2015- Completed
11. Receipt- Supplemental Approvals. The
Developer shall obtain all of the Supplemental
Approvals necessary to construct the Backbone
Infrastructure for Phase 1 of the Project, and
shall provide evidence of the same to the City
I§5.4(c)]
November 11, 2016- Completed
12. Application -Additional Approvals -
Horizontal. The Developer shall submit
evidence to the City that it has submitted an
application for a main line extension including a
fully executed water services agreement with
East Bay Municipal Utility District and payment
of any fees required by such agreement.
[§5.4(b)]
May 16, 2016- Completed
13. Receipt-Additional Approvals-Horizontal.
The Developer shall obtain the Additional
Approvals -Horizontal for Phase 1 of the Project
and shall provide the City with evidence of the
same [§5.4(c)]
May 31, 2018- Completed
14. Submission - Phase Construction Contract
(Horizontal). The Developer shall submit the
Construction Contract for the Backbone
Infrastructure of Phase 1 of the Project for City
approval. [§5.5]
February 19, 2018 - Completed
15. Approval - Phase Construction Contract
(Horizontal). The City shall approve or
disapprove the construction contract for the
horizontal component of Phase 1 of the Project.
[§5.5]
March 7, 2018- Completed
ACTION DATE
16. Submission - Public Improvement
Agreement and Completion Assurances To City.
The Developer and the City shall have entered
into a Public Improvement Agreement for the
Backbone Infrastructure for Phase 1 of the
Project and Developer shall have provided the
Completion Assurance required by the Public
Improvement Agreement. [§5.6]
March 7, 2018 - Completed
17. Submission - Evidence of Funds
Availability. The Developer shall submit the
specified evidence of funds availability for Phase
1. [§4.3(a)(7)]
March 7, 2018- Completed
18. Submission - Evidence of Insurance. The
Developer shall provide evidence of compliance
with insurance requirements for Phase 1. [Art.
16]
March 7, 2018- Completed
19. Closing. The parties shall complete the
Closing for Phase 1. [§5.3]
March 15, 2018- Completed
20. Commencement of Construction Phase 1
Infrastructure). The Developer shall commence
construction of the Infrastructure of Phase 1 of
the Project. [§5.1]
March 21, 2018 - Construction Commenced
21. Completion of Construction (Horizontal).
The Developer shall complete construction of
Phase 1 Infrastructure Phase of the Project.
[§5.1]
Within 28 months of Commencement of Phase 1
Infrastructure Phase [July 21, 2020]
22. Submission - Sub-Phase Update to
Financing Plan. The Developer shall prepare and
submit the Phase Update to the Financing Plan
for Phase 1 for City approval. [§3.1(b)]
February 19, 2018- Completed
23. Approval - Sub-Phase Update to Financing
Plan. The City shall approve or disapprove the
Phase Update to the Financing Plan for Phase 1.
[§3.2]
March 7, 2018- Completed
24. Apply - Additional Approvals - Vertical.
Developer shall apply for first Additional
Approvals- Vertical for the first Sub-Phase of the
Phase 1 Vertical Improvements. [§6.3(a)]
October 18, 2016- Completed
25. Receipt-Additional Approvals-Vertical.
Developer shall obtain the Additional Approvals
- Vertical necessary for the completion of all of
the Phase 1 Vertical Improvements and provide
the City of evidence of such approvals [§6.3(b)]
November 14, 2019
ACTION DATE
26. Submission-Vertical Improvement
Construction Contract. The Developer shall
submit the Vertical Improvement Construction
Contract for the Phase 1 Vertical Improvements
or Sub-Phase thereof for City approval. [§6.4]
At least 45 days prior to the commencement of
construction of any Sub-Phase
27. Approval - Vertical Improvement
Construction Contract. The City shall approve or
disapprove the construction contract for the
Vertical Improvements or Sub-Phase of Vertical
Improvements of Phase 1 of the Project. [§6.4]
Within 15 business days of Submission
28. Submission-Vertical Improvement
Completion Assurances. The Developer shall
submit the Vertical Improvement Completion
Assurances for the Vertical Improvements or
Sub-Phase of Phase 1 for City Approval [§6.5]
At least 45 days prior to the commencement of
construction of any Sub-Phase
29. Approval-Vertical Improvement
Completion Assurances. The City shall approve
or disapprove the Vertical Improvement
Completion Assurances. [§6.5]
Within 15 business days of submission
30. Commencement of Construction (Vertical).
The Developer shall commence construction of
the vertical component of Phase 1 of the
Project. [§6.1]
December 15, 2019
31. Completion of Construction (Vertical). The
Developer shall complete construction of the
vertical component of Phase 1 of the Project.
[§6.1]
37 months from Commencement of
Construction (Vertical) [January 15, 2022]
32. Issuance of Estoppel Certificate of
Completion (Horizontal and Vertical). The City
shall issue an Estoppel Certificate of Completion
for Phase 1 of the Project. [§10.7]
90 days from issuance of certificates of
occupancy for any Sub-Phase
33. Submission - Phase Update to Financing
Plan. The Developer shall prepare and submit
the Phase Update to the Financing Plan for
Phase 2 for City approval. [§3.1(a)]
At least 90 days prior to the Phase 2 Outside
Phase Closing Date [Originally July 3, 2018, if
extension payment pursuant to Section 1.3(a)
made, extended to July 3, 2019]
34. Approval - Phase Update -Financing Plan.
The City shall approve or disapprove the Phase
Update to the Financing Plan for Phase 2. [§3.2]
Within 30 days of submission
35. Navy Conveyance -The City shall facilitate
conveyance of all of Phase 2 property from the
NavytotheCity.[§8.15]
complete
ACTION DATE
36. State Lands Exchange. The City shall
facilitate closing of the exchange of Tidelands
property within the Phase 2 property. [§10.4]
complete
37. Application - Supplemental Approvals. The
Developer shall apply for the first Supplemental
Approvals necessary to construct the Backbone
Infrastructure for Phase 2 of the Project.
[§5.4(a)]
March 1, 2019
38. Receipt- Supplemental Approvals. The
Developer shall obtain all of the Supplemental
Approvals necessary to construct the Backbone
Infrastructure for Phase 2 of the Project, and
shall provide evidence of the same to the City
[§5.4(c)]
Originally September 3, 2018, if extension
payment pursuant to Section 1.3(a) is made
extended to September 3, 2019
39. Application -Additional Approvals -
Horizontal. The Developer shall submit
evidence to the City that it has submitted an
application for a main line extension including a
fully executed water services agreement with
East Bay Municipal Utility District and payment
of any fees required by such agreement.
[§5.4(b)]
Originally April 17, 2018, if extension payment
pursuant to Section 1.3(a) is made, extended to
April 17, 2019
40. Receipt-Additional Approvals-Horizontal.
The Developer shall obtain the Additional
Approvals -Horizontal for Phase 2 of the Project
and shall provide the City with evidence of the
same [§5.4(c)]
September 2, 2019
41. Submission - Phase Construction Contract
(Horizontal). The Developer shall submit the
Construction Contract for the Backbone
Infrastructure of Phase 2 of the Project for City
approval. [§5.5]
At least 45 days prior to the Phase 2 Outside
Phase Closing Date [August 17, 2019]
42. Approval - Phase Construction Contract
(Horizontal). The City shall approve or
disapprove the construction contract for the
horizontal component of Phase 2 of the Project.
[§5.5]
15 business days from Submission - Phase
Construction Contract (Horizontal)
10 ACTION DATE
43. Submission - Public Improvement
Agreement and Completion Assurances To City.
The Developer and the City shall have entered
into a Public Improvement Agreement for the
Backbone Infrastructure for Phase 2 of the
Project and Developer shall have provided the
Completion Assurance required by the Public
Improvement Agreement. [§5.6]
At least thirty (30) days prior to the Phase 2
Outside Phase Closing Date [September 1, 2019]
44. Submission - Evidence of Funds
Availability. The Developer shall submit the
specified evidence of funds availability for Phase
2. [§4.3(a)(7)]
At least thirty (30) days prior to the Phase 2
Outside Phase Closing Date [September 1, 2019]
45. Submission - Evidence of Insurance. The
Developer shall provide evidence of compliance
with insurance requirements for Phase 2. [Art.
16]
At least thirty (30) days prior to the Phase 2
Outside Phase Closing Date [September 1, 2019]
46. Closing. The parties shall complete the
Closing for Phase 2. [§5.3]
Originally October 1, 2018. if extension
payment pursuant to Section 1.3(a) is made,
extended to October 1, 2019
47. Commencement of Construction Phase 2
Infrastructure. The Developer shall commence
construction of the Infrastructure of Phase 2 of
the Project. [§5.1]
Within thirty (30) days of the Phase 2 Closing
[October 31, 2019]
48. Completion of Construction (Horizontal).
The Developer shall complete construction of
Phase 2 Infrastructure Phase of the Project.
[§5.1]
Within 30 months of Commencement of Phase 2
Infrastructure Phase [April 30, 2022]
49. Submission - Sub-Phase Update to
Financing Plan. The Developer shall prepare and
submit the Phase Update to the Financing Plan
for Phase 2 for City approval. [§3.1(b)]
At least sixty (60) days prior to the earlier of (i)
transfer of the Sub-Phase to an unaffiliated
buyer or (ii) issuance of the first building permit
for the Sub-Phase
50. Approval - Sub-Phase Update to Financing
Plan. The City shall approve or disapprove the
Sub-Phase Update to the Financing Plan for
Phase 2. [§3.2]
Within 30 days of submission
51. Apply - Additional Approvals - Vertical.
Developer shall apply for first Additional
Approvals- Vertical for the first Sub-Phase of
Phase 2 Vertical Improvements. [§6.3(a)]
Originally August 8, 2018, if extension payment
is made pursuant to Section 1.3(a), extended to
August 8, 2019
52. Receipt-Additional Approvals- Vertical.
Developer shall obtain the Additional Approvals
-Vertical for the construction of the Phase 2
Vertical Improvements thereof and provide the
City of evidence of such approvals [§6.3(b)]
Originally June 9, 2020, if extension payment is
made pursuant to Section 1.3(a), extended to
June 9, 2021
11 ACTION DATE
53. Submission-Vertical Improvement
Construction Contract. The Developer shall
submit the Vertical Improvement Construction
Contract for the Phase 2 Vertical Improvements
or Sub-Phase thereof for City approval. [§6.4]
At least 45 days prior to the commencement of
construction of any Sub-Phase
54. Approval - Vertical Improvement
Construction Contract. The City shall approve or
disapprove the construction contract for the
Vertical Improvements or Sub-Phase of Vertical
Improvements of Phase 2 of the Project. [§6.4]
Within 15 business days of Submission
55. Submission-Vertical Improvement
Completion Assurances. The Developer shall
submit the Vertical Improvement Completion
Assurances for the Vertical Improvements or
Sub-Phase of Phase 2 for City Approval [§6.5]
At least 45 days prior to the commencement of
construction of any Sub-Phase
56. Approval -Vertical Improvement
Completion Assurances. The City shall approve
or disapprove the Vertical Improvement
Completion Assurances. [§6.5]
Within 15 business days of submission
57. Commencement of Construction (Vertical).
The Developer shall commence construction of
the vertical component of Phase 2 of the
Project. [§6.1]
Originally July 9, 2019, if extension payment is
made pursuant to Section 1.3(a), extended to
July 9, 2020
58. Completion of Construction (Vertical). The
Developer shall complete construction of the
vertical component of Phase 2 of the Project.
[§6.1]
37 months from Commencement of
Construction (Vertical) [August 9, 2023]
59. Issuance of Estoppel Certificate of
Completion (Horizontal and Vertical). The City
shall issue an Estoppel Certificate of Completion
for Phase 2 of the Project. [§10.7]
90 days from issuance of certificates of
occupancy for any Sub-Phase
rppmB^S^-,^^''"(- •Wffi£@MBBKBffl$8BSBB& : ': ! "
60. Submission - Phase Update to Financing
Plan. The Developer shall prepare and submit
the Phase Update to the Financing Plan for
Phase 3 for City approval. [§3.1(a)]
At least 90 days prior to the Phase 3 Outside
Phase Closing Date [December 29, 2023]
61. Approval - Phase Update -Financing Plan.
The City shall approve or disapprove the Phase
Update to the Financing Plan for Phase 3. [§3.2]
Within 30 days of submission
62. Navy Conveyance -The City shall facilitate
conveyance of all of Phase 3 property from the
NavytotheCity.[§8.15]
September 28, 2023
12 ACTION DATE
63. State Lands Exchange. The City shall
facilitate closing of the exchange of Tidelands
property within the Phase 3 property. [§10.4]
November 24, 2023
64. Application - Supplemental Approvals. The
Developer shall apply for the first Supplemental
Approvals necessary to construct the Backbone
Infrastructure for Phase 3 of the Project.
[§5.4(a)]
May 25, 2023
65. Receipt-Supplemental Approvals. The
Developer shall obtain all of the Supplemental
Approvals necessary to construct the Backbone
Infrastructure for Phase 3 of the Project, and
shall provide evidence of the same to the City
[§5.4(c)]
February 26, 2024
66. Application -Additional Approvals -
Horizontal. The Developer shall submit
evidence to the City that it has submitted an
application for a main line extension including a
fully executed water services agreement with
East Bay Municipal Utility District and payment
of any fees required by such agreement.
[§5.4(b)]
October 12, 2023
67. Receipt-Additional Approvals-Horizontal.
The Developer shall obtain the Additional
Approvals -Horizontal for Phase 3 of the Project
and shall provide the City with evidence of the
same [§5.4(c)]
February 25, 2025
68. Submission - Phase Construction Contract
(Horizontal). The Developer shall submit the
Construction Contract for the Backbone
Infrastructure of Phase 2 of the Project for City
approval. [§5.5]
At least 45 days prior to the Phase 3 Outside
Phase Closing Date [February 12, 2024]
69. Approval - Phase Construction Contract
(Horizontal). The City shall approve or
disapprove the construction contract for the
horizontal component of Phase 3 of the Project.
[§5.5]
15 business days from Submission - Phase
Construction Contract (Horizontal)
13 ACTION DATE
70. Submission - Public Improvement
Agreement and Completion Assurances To City.
The Developer and the City shall have entered
into a Public Improvement Agreement for the
Backbone Infrastructure for Phase 3 of the
Project and Developer shall have provided the
Completion Assurance required by the Public
Improvement Agreement. [§5.6]
At least thirty (30) days prior to the Phase 3
Outside Phase Closing Date [February 28, 2024]
71. Submission - Evidence of Funds
Availability. The Developer shall submit the
specified evidence of funds availability for Phase
3. [§4.3(a)(7)]
At least thirty (30) days prior to the Phase 3
Outside Phase Closing Date [February 28, 2024]
72. Submission - Evidence of Insurance. The
Developer shall provide evidence of compliance
with insurance requirements for Phase 3. [Art.
16]
At least thirty (30) days prior to the Phase 3
Outside Phase Closing Date [February 28, 2024]
73. Closing. The parties shall complete the
Closing for Phase 3. [§5.3]
March 29, 2024
74. Commencement of Construction Phase 3
Infrastructure). The Developer shall commence
construction of the Infrastructure of Phase 3 of
the Project. [§5.1]
Within thirty (30) days of the Phase 3 Closing
[April 28, 2024]
75. Completion of Construction (Horizontal).
The Developer shall complete construction of
Phase 3 Infrastructure Phase of the Project.
[§5.1]
Within 30 months of Commencement of Phase 3
Infrastructure Phase [October 28, 2026]
76. Submission - Sub-Phase Update to
Financing Plan. The Developer shall prepare and
submit the Phase Update to the Financing Plan
for Phase 3 for City approval. [§3.1(b)]
At least sixty (60) days prior to the earlier of (i)
transfer of the Sub-Phase to an unaffiliated
buyer or (ii) issuance of the first building permit
for the Sub-Phase
77. Approval - Sub-Phase Update to Financing
Plan. The City shall approve or disapprove the
Sub-Phase Update to the Financing Plan for
Phase 3. [§3.2]
Within 30 days of submission
78. Apply - Additional Approvals - Vertical.
Developer shall apply for first Additional
Approvals- Vertical for the first Sub-Phase of
Phase 3 Vertical Improvements. [§6.3(a)]
February 2, 2024
79. Receipt-Additional Approvals- Vertical.
Developer shall obtain the Additional Approvals
- Vertical for the construction of Phase 3
Vertical Improvements and provide the City of
evidence of such approvals [§6.3(b)]
December 4, 2025
14 ACTION DATE
80. Submission-Vertical Improvement
Construction Contract. The Developer shall
submit the Vertical Improvement Construction
Contract for the Phase 3 Vertical Improvements
or Sub-Phase thereof for City approval. [§6.4]
At least 45 days prior to the commencement of
construction of any Sub-Phase
81. Approval - Vertical Improvement
Construction Contract. The City shall approve or
disapprove the construction contract for the
Vertical Improvements or Sub-Phase of Vertical
Improvements of Phase 3 of the Project. [§6.4]
Within 15 business days of Submission
82. Submission - Vertical Improvement
Completion Assurances. The Developer shall
submit the Vertical Improvement Completion
Assurances for the Vertical Improvements or
Sub-Phase of Phase 3 for City Approval [§6.5]
At least 45 days prior to the commencement of
construction of any Sub-Phase
83. Approval - Vertical Improvement
Completion Assurances. The City shall approve
or disapprove the Vertical Improvement
Completion Assurances. [§6.5]
Within 15 business days of submission
84. Commencement of Construction (Vertical).
The Developer shall commence construction of
the vertical component of Phase 3 of the
Project. [§6.1]
January 4, 2025
85. Completion of Construction (Vertical). The
Developer shall complete construction of the
vertical component of Phase 3 of the Project.
[§6.1]
37 months from Commencement of
Construction (Vertical) [February 4, 2028]
86. Issuance of Estoppel Certificate of
Completion (Horizontal and Vertical). The City
shall issue an Estoppel Certificate of Completion
for Phase 3 of the Project. [§10.7]
90 days from certificates of occupancy for a Sub-
Phase
:tEi^^ ..';.<•' .. *\ 'V- ,• ;'• ;,;,
87. Commencement of Construction.
Commence construction of the Ferry Terminal.
June 30, 2020
88. Completion of Construction. Complete
construction of the Ferry Terminal.
March 31, 2022
[Remainder of this Page Intentionally Left Blank]
15 FIFTH AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT FOR ALAMEDA POINT - SITE A AND TO GROUND LEASES FOR BLOCK 8 This Fifth Amendment to Disposition and Development Agreement for Alameda Point - Site A and to Ground Leases for Block 8 ("Fifth Amendment") is entered into as of October 10, 2018 ("Effective Date") by and between the City of Alameda, a California charter city (the "City"), and Eden Housing, Inc., a California nonprofit public benefit corporation ("Eden").
RECITALS
A. The City and Alameda Point Partners, LLC, a Delaware limited liability company (the "Developer")have entered into that certain Disposition and Development Agreement for Alameda Point-Site A, dated as of August 6, 2015 (the "Original DDA"), as amended by that certain First Amendment to Disposition and Development Agreement, dated as of February 8, 2017, and effective as of March 9, 2017 (the "First Amendment"), and as further amended by that certain Second Amendment to Disposition and Development Agreement, dated as of July 19, 2017 ("Second Amendment"), and as further amended by that certain Third Amendment to Disposition and Development Agreement dated as of March 7, 2018, and as further amended by that certain Fourth Amendment to Disposition and Development Agreement dated as of October IV , 2018 and clarified by Operating Memoranda dated September 16, 2015, October 26, 2015, March 6, 2017, December 8, 2017 and March 7, 2018 (collectively, the "Operating Memoranda"). The Original DDA, as so amended and clarified, is referred to herein as the "DDA."
B. In accordance with the Affordable Housing Implementation Plan, which is attached to and incorporated into the DDA, the Developer assigned to Eden certain rights and obligations under the DDA, including under the Affordable Housing Implementation Plan pursuant to that certain Partial Assignment and Assumption Agreement dated as of March 7, 2016 ("Partial Assignment"). The City consented to the Partial Assignment and determined that Eden is a Qualified Affordable Housing Developer pursuant to the provisions of the DDA and the Affordable Housing Implementation Plan.
C. The City, the Developer and Eden entered into that certain Fourth Operating Memorandum dated as of December 8, 2017, which among other things, approved the conveyance of Block 8 of the Site also referred to as the Affordable Housing Site in the Affordable Housing Implementation Plan to Eden in one or more ground leases. The Fourth Operating Memorandum also amended the Affordable Housing Milestone Schedule.
D. The City and Eden have entered into two Ground Leases, dated as of November 8, 2017 (for the Senior Project) and December 8, 2017 (for the Family Project) ("Ground Leases"), whereby the City leased to Eden Block 8 for the development of 130 units of housing affordable to very low- and low-income households. The terms of the Ground Leases do not commence and Eden is not entitled to possession of Block 8 until Eden has met all of the conditions for conveyance of the Affordable Housing Site in the DDA and theAffordableHousingImplementationAgreement,whichconditionsare required to be met no later than December 31, 2018.
E. Eden has requested that the City agree to amendments to the DDA and the Affordable Housing Implementation Plan in order to extend certain dates set forth in the Affordable Housing Milestone Schedule as a result of Eden, despite good faith efforts, being unable to secure the sources of financing necessary for the construction of either Phase 1 (herein referred to as the "Senior Project") or Phase II (herein referred to as the "Family Project") of the Affordable Housing Development.
F. Eden has demonstrated feasible options for securing financing necessary for the Affordable Housing Development.
G. The City and Eden now desire to amend the DDA, including the Affordable Housing Implementation Agreement as well as the Ground Leases in accordance with the terms and conditions of this Fifth Amendment to reflect changes in the financing and Schedule of the Affordable Housing Development. In accordance with the terms of the Partial Assignment, the Developer has consented to these amendments as evidenced by the Developer's acknowledgement of this Fifth Amendment.
AGREEMENT
WITH REFERENCE TO THE FACTS RECITED ABOVE, the City and Eden agree as follows:
1. Definitions. Capitalized terms not defined in the Fifth Amendment shall have the same meaning set forth in the DDA.
2. Affordable Housing Development Financing. Sections 3.5 and 3.6 of the Affordable Housing Implementation Plan are hereby deleted in their entirety and replaced with the following:
3.5 Affordable Housing Development Financing and Schedule. Qualified Affordable Housing Developer has proposed a financing option for the development of both the Senior Project and the Family Project of the Affordable Housing Development as set forth in Exhibit A attached hereto ("Financing Scenario"). The Qualified Affordable Housing Developer shall submit the necessary funding applications to obtain full funding of the Affordable Housing Development within the time frames set forth in the Affordable Housing Development Milestone Schedule attached hereto as Exhibit B and submit an Affordable Housing Development Financing Plan within the times set forth in the Affordable Housing Development Milestone Schedule. The Qualified Affordable Housing Developer may pursue alternative financing from that set forth in the Financing Scenario shown in Exhibit A in order to submit a feasible Affordable Housing Development Financing Plan, but shall provide the City with written notice of any such alternative financing and the application schedules for such financing as soon as Qualified Affordable Housing Developer determines to pursue such alternative financing. Receipt of financing commitments for all financing necessary for the development of each of the Senior Project and the Family Project of the Affordable Housing Development is a condition to Closing for each applicable Phase of the Affordable Housing Development Site.
If Qualified Affordable Housing Developer does not receive a commitment of Veterans Housing and Homelessness Prevention funds for the Senior Project of the Affordable Housing Development, Qualified Affordable Housing Developer shall commit either its own funds or funds from an alternative funding source in the amount necessary to ensure that the financing for the Senior Project can be obtained within the times set forth in the Affordable Housing Development Milestone Schedule, not to exceed One Million Seven Hundred Thousand Dollars ($1,700,000).
If the Qualified Affordable Housing Developer fails to receive any of the necessary funding for either the Senior Project or the Family Project of the Affordable Housing Development by the outside date specified in the Affordable Housing Development Milestone Schedule for receipt of such funds, then the City, the Developer and the Qualified Affordable Housing Developer shall meet in good faith for a period not to exceed sixty (60) days to determine if feasible and mutually acceptable alternate arrangements can be made to finance development of the applicable phase of the Affordable Housing Development. If no agreement is reached by the parties within such sixty (60) day period regarding the alternative financing structure for the construction of the Affordable Housing Development or any phase which remains unfunded at such time, the Developer shall have sixty (60) days to provide the City with a feasible proposal for how it expects to meet the Affordable Housing obligations under the DDA. Failure of the Developer to submit to the City a feasible proposal for meeting the Affordable Housing obligations within sixty (60) days shall be considered a Developer Event of Default under the DDA and an event of default under the Ground Leases, which after expiration of applicable notice and cure periods, will allow the City to exercise any of its remedies, including termination of the DDA and the Ground Leases, provided however, that if the Qualified Affordable Housing Developer has met the conditions to conveyance in the DDA as amended by this Fifth Amendment for the Senior Project of the Affordable Housing Development and conveyance of the portion of Block 8 for the Senior Project has occurred, then the failure of the Qualified Affordable Housing Developer or the Developer to meet the milestones for the Family Project shall not be deemed to be a Developer Event of Default under the DDA or an event of default under the Ground Lease with respect to the Senior Project of the Affordable Housing Development. Any agreement that is reached between the parties regarding an alternative financing plan for the construction of the Affordable Housing Development shall be memorialized in an operating memorandum to the DDA.
Notwithstanding anything to the contrary contained herein, the Qualified Affordable Housing Developer hereby agrees to use commercially reasonable efforts to obtain any and all necessary or required approvals to reallocate to the Senior Project of the Affordable Housing Development $1,500,000 of the Alameda County Housing Bond A-l Funds currently committed to the Family Project of the Affordable Housing Development (the "Family Project County Funds") in a manner that does not materially and adversely affect the financing for the Senior Project. If the Qualified Affordable Housing Developer obtains such approvals, the City, Qualified Affordable Housing Developer and Developer agree that $1,500,000 of the committed Developer Affordable Housing (AH) Funds shall be reallocated from the Senior Project to the Family Project of the Affordable Housing Development. In the event that the Qualified Affordable Housing Developer is unable to obtain such approvals, the Qualified Affordable Housing Developer's obligations set forth in this paragraph shall terminate, and QualifiedAffordable Housing Developer may use all $3,000,000 of the Developer AH Funds for the Senior Project of the Affordable Housing Development.
3. Affordable Housing Development Milestone Schedule. The parties hereby agree to amend the Affordable Housing Development Milestone Schedule by deleting Attachment A to Exhibit M of the Original DDA as amended by the Fourth Operating Memorandum and replacing it with Exhibit B attached to this Fifth Amendment.
4. Ground Lease. In accordance with the terms of the Ground Leases, extension of the date for Closing in the DDA automatically extends the date of Closing in the Ground Leases and the parties agree that the Ground Leases remain in full force and effect. The Milestone Schedule attached to the Ground Lease for the Block 8 Senior Housing as Exhibit C is deleted and replaced by Exhibit C attached to this Fifth Amendment. The Milestone Schedule attached to the Ground Lease for the Block 8 Family Housing as Exhibit C is deleted and replaced by Exhibit D attached to this Fifth Amendment.
5. Effect of Amendment. Except to the extent amended in this Fifth Amendment, the DDA shall remain in full force and effect. In the event of a conflict between this Fifth Amendment and the DDA, this Fifth Amendment shall control. [Signatures on next page]
IN WITNESS WHEREOF, the parties have signed this Fifth Amendment on the dates indicated below.
CITY OF ALAMEDA
a California charter city
By: /jS*it~¥\7^?
David L. Rudat
Interim City Manager
Recommended for Approval:
Base Reuse and Economic Development Director
Approved as to Form:
CMhiaO-
Celena H. Chen
Assistant City Attorney
Authorized by City Council Resolution No.
Signatures continue on next page
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[<Wb$
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EDEN HOUSING, INC.,
a California nonprofit public benefit corporation
Name74h~$& /A\Ap4<eijfcZ
Title: J^p,^^ ffUS^H
ACKNOWLEDGED AND ACCEPTED
ALAMEDA POINT PARTNERS, LLC,
a Delaware limited liability company
By: Alameda Point Investments, LLC,
a California limited liability company,
its managing member
By: NCCH 100 Alameda, L.P.,
a Delaware limited partnership,
its managing member
By: Maple Multi-Family Development, L.L.C., a Texas
limited liability company,
its General Partner
By:
Name:
Title:
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EDEN HOUSING, INC.,
a California nonprofit public benefit corporation
By:.
Name:_
Title: "
ACKNOWLEDGED AND ACCEPTED
ALAMEDA POINT PARTNERS, LLC,
a Delaware limited liability company
By: Alameda Point Investments, LLC,
a California limited liability company,
its managing member
By: NCCH 100 Alameda, L.P.,
a Delaware limited partnership,
its managing member
By: Maple Multi-Family Devj
limitedliahjJrfw^Mnpan
its Gen
By:
Name: /ftftfl^M jjgggftfo/
Title: V£_
I, L.L.C., a Texas
EXHIBIT A
FINANCING SCENARIO
Phase I Senior Project
Donated Land and Fees from APP
Contributions from APP (Developer AH
Funds)
Alameda County Housing Bond A-l Funds
Permanent Mortgage Debt
Permanent VASH funded Mortgage Debt
Veterans Housing and Homelessness
Prevention
Federal Home Loan Bank
Deferred and R-contributed Developer Fees
Veterans Housing and Homelessness
Prevention Funds (additional award) or funds
from Qualified Affordable Housing
Developer*
Tax Credits (4%)**
Total
Committed
Committed
Committed
Committed
Committed
Committed
Committed
Committed
Committed
Application submitted
$6.3 million
$3.0 million
$3.0 million
$4.5 million
$3.2 million
$1.4 million
$0.6 million
$3.3 million
$1.7 million
$14.4 million
$41.4 million
*Eden Housing anticipates receiving an award of Veterans Housing and Homelessness Prevention funds in November 2018. If the award is not received Eden has committed to providing an additional $1.7 million to the project.
** A non-competitive "over the counter" application was submitted on September 14, 2018 with funds expected to be awarded on November 14, 2018.
Phase II - Family Project
Donated Land and Fees from APP Committed $6.3 million
Permanent Mortgage Debt Committed $4.1 million
Permanent Section 811-funded Mortgage Debt Committed $3.3 million Federal Home Loan Bank Committed $0.7 million
Deferred and Re-contributed Developer Fee Committed $4.5 million Affordable Housing and Sustainable
Communities
Pending Application $8.4 million
Alameda County Housing Bond A-l Funds Committed $2.0 million Alameda County Housing Bond A-l Funds Pending Application $1.4 million Tax Credits (4% Competitive) Pending Application $23.2 million Total $53.9 million
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EXHIBIT B
AFFORDABLE HOUSING DEVELOPMENT MILESTONE SCHEDULE
Affordable Housing Development Milestone Schedule
Phase I: Senior Project
ACTION DATE
Tax Credit Application - Senior Project. The
Qualified Affordable Housing Developer shall submit
timely and complete applications for a Tax Credit
Reservation to TCAC for the Senior Project.
September 30, 2018
Tax Credit Reservation Allocation - Senior
Project. The Qualified Affordable Housing Developer
shall have secured an allocation of tax credits for the Senior Project.
No later than November 17, 2018
Phase I Financing Plan- Senior Project. The
Qualified Affordable Housing Developer shall submit
to the City Manager for approval the Affordable
Housing Development Financing Plan for the Senior
Project
December 31, 2018
Funding Award - Senior Project
The Qualified Affordable Housing Developer shall
have obtained necessary funding awards from
governmental funders to provide feasible funding
plans for the Senior Project
No later than January 31, 2019
Senior Affordable Housing Site Closing. The
Qualified Affordable Housing Developer shall have
completed all conditions precedent to conveyance of
the Senior Portion of the Affordable Housing Site and
City transfers the Senior Portion of the Affordable
Housing Site. [§3.3]
No later than March 17, 2019
Commencement of Construction Senior Project.
The Qualified Affordable Housing Developer shall
have commenced construction of the Senior Project.
[§4.1]
No later than March 17, 2019
Senior Completion of Construction. The Qualified
Affordable Housing Developer shall have completed
construction of Senior Project of the Affordable
Housing Development [§4.1]
July 17,2020
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Phase II: Family Project
ACTION DATE
Tax Credit Application - Family Project. The
Qualified Affordable Housing Developer shall submit
a timely and complete application for Tax Credit
Reservation to TCAC.
No later than March 30, 2020
Tax Credit Reservation Allocation - Family
Project. The Qualified Affordable Housing Developer
shall have secured an allocation of tax credits for the Family Project.
No later than June 30, 2020
Phase II Financing Plan- Family Project. The
Qualified Affordable Housing Developer shall submit
to the City Manager for approval the Affordable
Housing Development Financing Plan for the Family
Project
July 31, 2020
Funding Award - Family Project
The Qualified Affordable Housing Developer shall
have obtained necessary funding awards from
governmental funders to provide feasible funding
plans for the Family Project
October 31, 2020
Family Affordable Housing Site Closing. The
Qualified Affordable Housing Developer shall have
completed all conditions precedent to conveyance of
Family portion of the Affordable Housing Site and
City transfers the Family portion of the Affordable
Housing Site. [§3.3]
No later than December 31, 2020
Commencement of Construction Family Project.
The Qualified Affordable Housing Developer shall
have commenced construction of the Family Project.
[§4.1]
No later than January 31, 2021
Family Project Completion of Construction. The
Qualified Affordable Housing Developer shall have
completed construction of the Family Project of the
Affordable Housing Development [§4.1]
July 31, 2022
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Phase I and II: Senior and Family Projects
ACTION DATE
Evidence of Financing. Qualified Affordable
Housing Developer shall submit evidence that any
conditions to release or expenditure of funds described in the approved Phase Financing Plans have been met
or will be met prior to the applicable Closing
[§4.3(a)(6) of the DDA]
At least 30 days prior to the applicable
Closing
Supplemental Approvals. Qualified Affordable
Housing Developer shall have obtained all
Supplemental Approvals required for the development
of the Family Project and the Senior Project
[§4.3(a)(10)oftheDDA]
At least 30 days prior to the applicable
Closing
Evidence of Insurance. Qualified Affordable
Housing Developer shall provide evidence of
compliance with the insurance requirements for the
Family Project and the Senior Project [§4.3(a)(9) of
the DDA]
At least 30 days prior to the applicable
Closing
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EXHIBIT C
MILESTONE SCHEDULE
BLOCK 8 SENIOR HOUSING GROUND LEASE
Milestone Schedule
Affordable Housing Development Milestone Schedule
ACTION OUTSIDE DATE
Tax Credit Application. The Tenant shall
submit a timely and complete application for a
Tax Credit Reservation to TCAC for the
Project. [§3.6(b)]
No later than September 30, 2018
Tax Credit Reservation Allocation. Tenant
shall have secured an allocation of tax credits
for the Project. [§3.6]
No later than November 17, 2018
Funding Award. Tenant shall have obtained
necessary funding awards from governmental
funders to provide feasible funding plan for the
Project
No later than January 31,2019
Phase I Financing Plan. Tenant shall submit
to the City Manager for approval the
Affordable Housing Development Financing
Plan [§3.4]
No later than December 31,2018
City Review of Phase I Financing Plan. City
shall review and approve or disapprove the
Phase I Financing Plan
Within 30 days of receipt
Evidence of Financing. Tenant shall submit
evidence that any conditions to release or
expenditure of funds described in the Phase I
Financing Plan have been met or will be met
prior to Closing [§4.3(a)(6) of the DDA]
At least 30 days prior to Closing
Supplemental Approvals. Tenant shall have
obtained all Supplemental Approvals required
for development of the Affordable Housing
Development [§4.3(a)(10) of the DDA]
At least 30 days prior to Closing
Evidence of Insurance. Tenant shall provide
evidence of compliance with the insurance
requirements [§4.3(a)(9) of the DDA]
At least 30 days prior to Closing
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ACTION OUTSIDE DATE
Affordable Housing Site Closing. Tenant
shall have completed all conditions precedent
to conveyance of Affordable Housing Site and
City transfers possession of Affordable
Housing Site. [§3.3]
No later than March 17, 2019
Commencement of Construction. Tenant
shall have commenced construction of the first
phase of the Affordable Housing Development.
[§4.1]
No later than March 17, 2019
Completion of Construction. Tenant shall
have completed construction of the Affordable
Housing Development [§4.1]
No later than July 17, 2020
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EXHIBIT D
MILESTONE SCHEDULE
BLOCK 8 FAMILY HOUSING GROUND LEASE
Milestone Schedule
Affordable Housing Development Milestone Schedule
ACTION DATE
Tax Credit Application. The Tenant shall
submit a timely and complete application for a
Tax Credit Reservation to TCAC.
No later than March 30, 2020
Tax Credit Reservation Allocation. Tenant
shall have secured an allocation of tax credits
for the Project. [§3.6]
No later than June 30, 2020
Phase II Financing Plan. Tenant shall submit
to the City Manager for approval the
Affordable Housing Development Financing
Plan [§3.4]
NolaterthanJuly31,2020
Funding Award. Tenant shall have obtained
necessary funding awards from governmental
funders to provide feasible funding plan for the
Project
No later than October 31, 2020
City Review of Phase II Financing Plan. City
shall review and approve or disapprove the
Phase II Financing Plan
Within 30 days of receipt
Evidence of Financing. Tenant shall submit
evidence that any conditions to release or
expenditure of funds described in the Phase II
Financing Plan have been met or will be met
prior to Closing [§4.3(a)(6) of the DDA]
At least 30 days prior to Closing
Supplemental Approvals. Tenant shall have
obtained all Supplemental Approvals required
for development of the Affordable Housing
Development [§4.3(a)(10) of the DDA]
At least 30 days prior to Closing
Evidence of Insurance. Tenant shall provide
evidence of compliance with the insurance
requirements [§4.3(a)(9) of the DDA]
At least 30 days prior to Closing
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ACTION DATE
Affordable Housing Site Closing. Tenant
shall have completed all conditions precedent
to conveyance of Affordable Housing Site and
City transfers possession of Affordable
Housing Site. [§3.3]
No later than December 31, 2020
Commencement of Construction. Tenant
shall have commenced construction of the
second phase of the Affordable Housing
Development. [§4.1]
No later than January 31, 2021
Completion of Construction. Tenant shall
have completed construction of the Affordable
Housing Development [§4.1]
No later than July 31, 2022
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