City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page B23
Figure B-7 Conceptual Domestic Water Infrastructure
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page B24
B11 Recycled Water
B11.1 Existing Facilities
In 1996, CCCSD and CCWD reached an agreement allowing CCCSD to supply recycled water from the wastewater treatment plant to parts of its service area.
In August 2009, CCCSD provided a “Will Serve” letter to the City of Concord indicating its commitment to be the supplier of recycled water to the EDC. The letter acknowledges that the precise amount of recycled water has yet to be determined but cites CCCSD’s ability and intent to provide up to 2,000 MG per year. The State Water Resources Control Board has granted CCCSD the authority to provide up to 82,000 MG of recycled water per year for irrigation and industrial purposes throughout its service area, which is far greater than CCCSD’s 2009 delivery of 230 MG of recycled water a year.
A recycled water system is required for the CRP Area to reduce total water demand and avoid the need to use drinking water for irrigation and other non- potable purposes.
B11.2 Proposed Infrastructure
Delivery of recycled water to the CRP Area will require construction of a pipeline connecting CCCSD’s treatment facility to the site, and expansion and renovation of CCCSD’s existing tertiary treatment facility.
CCCSD developed the “Concord Naval Weapons Station Recycled Water Facilities Plan” in 2011, which included plans for upgrades to their treatment facilities and proposed five possible alignments for the new recycled water pipeline that will serve the CRP. After the 2011 facilities plan, CCCSD and CCWD agreed that CCCSD will be the supplier of recycled water (RW) and CCWD will own and operate the RW distribution system. The specific needs and associated costs for recycled water facilities require further coordination with CCCSD and CCWD.
The proposed CRP recycled water system will provide recycled water as the primary water source for:
• Irrigation of public spaces, open space, and parks.
• Irrigation of all private outdoor spaces within multi-family, commercial, and institutional developments.
Based on updated calculations by Lennar, the average daily recycled water demand is estimated to be 1.6 – 2.1 MGD (600 – 760 MG per year) at build-out, well below CCCSD’s RW supply capacity.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page B25
RW storage tanks will be required to mitigate peak system demands. The tanks will be constructed within Concord Hills Regional Park along the Los Medanos Ridge adjacent to the potable water storage reservoirs. See discussion of location in Section B10. The storage reservoir site will be owned by CCWD like the potable water reservoir site. The tanks for Zone 1 and 2 have been preliminarily sized at 40,000 and 75,000 gallons respectively assuming that the required storage is equivalent to one hour of average irrigation demand.
As with the potable water network, the recycled water network is assumed to be split into two zones with the 110 ft elevation as the boundary. The system is anticipated to have sufficient pressure to serve the lower elevations in Zone 1. A pump station will be required for Zone 2.
• The CRP backbone RW distribution system will consist of approximately 50,000 lf of 12 – 18-inch pipes: a conceptual layout is presented in Figure B-8.
26 City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page B26
Figure B-8 Conceptual Recycled Water Infrastructure
Appendix C
Remediation
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page C1
C1 Overview
Because this development opportunity involves a former military facility, it is important that any Master Developer fully understand the status of the clean-up efforts on the CNWS site.
The following paragraphs provide a broad overview of the programs and regulations that guide Navy performance on site clean-up for transfer. Specific documents are italicized when referred to in this Appendix, and a bibliography of documents prepared by, or for, the Navy and received by the LRA can be found here to assist bidders in conduct of due diligence. Interested parties are encouraged to review these documents and to consult with technical, regulatory and legal advisors as appropriate in order to evaluate risks associated with development at the CNWS. Please contact the LRA’s administrative contact Israel Mora ([email protected]) to request any of the documents in this Appendix and/or in the bibliography.
Please note that the information provided below is for general reference purposes only, and the LRA makes no representations of any kind about the above- referenced documents, or with regard to Navy legal or regulatory obligations or requirements, or program, or statutory content or requirements. The information provided by the Navy represents an evolving program and the completion dates are estimates subject to change.
The CNWS was listed as a Superfund Site by the Environmental Protection Agency (EPA) in 1994 primarily as a result of the contamination within the Tidal Area of the Base, near Port Chicago. The Tidal Area remains operational as a military facility and is not part of the BRAC transfer. A range of pre-development clean-up, monitoring, and site management requirements apply. Generally, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, 42 USC 9601 et seq.) and the National Oil and Hazardous Substances Pollution Contingency Plan (NCP, 40 CFR 300) and applicable state law establish requirements and procedures for the federal government's environmental cleanup of hazardous materials on the CNWS site. CERCLA, furthermore, requires that a deed for federally owned property being transferred outside the government contain covenants regarding the remediation of hazardous materials. The covenants also frame a process for determination of liability for unknown contaminants found post-transfer.
The Resource Conservation and Recovery Act (RCRA) requires a number of safe and secure procedures for treating, transporting, storing, and disposing of hazardous wastes and sets forth permitting requirements for hazardous waste management activities, including closing a facility. In 2003, the State Department of Toxic Substances Control (DTSC) closed the permitted hazardous waste
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page C2
facilities on the CNWS site. Several individual sites continue to undergo clean up, and closure will be processed under CERCLA.
Not all of the areas requiring remediation are known at this time, as the Navy needs to undertake additional phases of site characterization and investigation. In regard to MEC (Munitions and Explosives of Concern), the Navy is entering a refined phase of investigation in an effort to more precisely determine the nature and extent of the potential munitions-related contamination and develop remedies for future use scenarios.
Bunker and building demolition and abatement of asbestos and lead-based paint on buildings will be the responsibility of the Master Developer. Cost estimates prepared for the LRA are included in the preliminary unit costs.
Since being listed as a Superfund Site, the Navy has followed a clean-up process in accordance with DOD remediation programs. These programs are listed below and more information on them can be found in Book Two of the CRP Area Plan.
1. Military Munitions Response Program (MMRP) addresses areas where MECs might be present in the environment
2. Installation Restoration (IR) Program identifies, investigates, and remediates contamination from hazardous substances, pollutants, and contaminants Before any property comprising the CNWS site may be conveyed to the LRA for subsequent conveyance to the Master Developer, the Navy must complete a “Finding of Suitability for Transfer” (FOST), and will seek concurrence on the FOST from EPA and the California Department of Toxic Substance Control (DTSC) and the Regional Water Quality Control Board (RWQCB). At this time approximately 1,100 acres (shown in Figure C-1 in yellow) has been documented as the first FOST. A second FOST was completed in 2019 for the Borrow/Dredge Area (Figure C-1). The Navy anticipates that a third FOST may be approved for the Former Inland Burn Area (FIB) in 2024. Actual transfer of these two areas is dependent on submittal by the LRA, and approval by the Navy, of an EDC application. That process is projected to be completed in fiscal year (FY) 2024/2025. Guam Way and Site 29 would likely be suitable for transfer in FY 2029. FOST preparation and transfer of Site 22 and the Runway Area, as shown on Figure C-1 are unknown at this time as characterization and remedy selection are still in preparation. At the time of preparation of this RFQ, the Navy is conducting a site wide investigation of a chemical of emerging concern (designated by the EPA) Polyfluoroalkyl substances (PFAS). The Navy’s draft preliminary assessment which is undergoing regulatory review indicates there are no PFAS areas of concern within the first two FOST areas. The LRA has not independently reviewed these findings and is not aware of concurrence by regulators of these preliminary findings.
Under BRAC regulations the Navy gives deference to future land use designations in the reuse plan (or in Concord’s case its Area Plan) in defining cleanup
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page C3
standards. Based on existing data, there are a number of areas planned for residential use that will require the Navy to consider a remedy that allows for such land use, with State and federal regulatory concurrence.
Following is a discussion of the sites, shown in orange in Figure C-1, including current status and estimated timelines for transfer.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page C4
Figure C-1 Remediation Boundaries
5 City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
Page C5
C1.1 UXO Sites 9 and 3 and IR Site 13 – “Former
Inland Burn Area”
The Former Inland Burn/Railroad Sidings Excavation Site (FIB/RSE) is located in the western portion of the Concord Reuse Project Figure 1), and includes UXO Sites 9 and 3, and IR Site 13.
C1.2 The Final Record of Decision for the FIB/RSE
was completed September 24, 2020, describing
Land Use Controls (LUC) for the site (Final
Record of Decision for Former Inland
Burn/Railroad Sidings Excavations (UXO Sites 9
and 3 and IR Site 13) at the former Naval Weapons
Station Seal Beach Detachment (NAVWPNSTA)
Concord in Concord, California. September 2020).
The Navy is currently in the process of
completing the LUC Remedial Design for the site.
Transfer is projected as part of FOST 3 in
2024.MMRP Site 11 Guam Way
Guam Way is located in the west-central portion of the Concord Reuse Project (Figure 1). The site was potentially used for storage or disposal. Buried debris, including munitions, were excavated from the site during a trenching operation conducted as part of the initial site investigation.
The investigations and removal actions at Guam Way are summarized in Final Remedial Investigation, Guam Way (UXO 11) Naval Weapons Station Seal Beach Detachment Concord, Concord, California (NOREAS, February 2017. Ground Water and soil gas monitoring is ongoing at the site. Results of the continued monitoring will be incorporated into a Remedial Investigation Addendum and Feasibility Study for the site. Transfer is projected for 2030.
C1.3 Site 29 Plume Area (Building IA-25)
IR Site 29 is located within the west-central portion of the Concord Reuse Project area (Figure 1) and was the site of munitions development and reworking. The site includes Buildings IA-19, IA-25, and 263. A sink and sanitary sewer system was constructed with Building IA-25 that drained through a 6-inch clay pipe into a partially buried septic tank and associated leach field, decommissioned in 1997.
Disposal of chemicals from this area is the presumed source of a chlorinated
6 City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
Page C6
solvent plume in groundwater beneath the site. Investigations and remedial activities at the site are ongoing. Transfer dates are unknown at this time but likely 2029.
C1.4 RAD Sites (IA-58, IA-20, IA-21, IA-21A, IA-22)
The Radiological Sites within the EDC are located in the northwestern portion of the Concord Reuse Project (Figure 1). They include five buildings: IA-20, IA-21, IA-21A, and IA-22, which were evaluation laboratories, and Building IA-58, an X-ray facility.
Complete radiation scoping surveys were completed in 2011 and are reported in:
Draft Final Status Survey Reports IA-21, IA21A, IA-22, IA-58. Base-wide Radiological Survey (Gilbane, 2013). These reports document the methods and standard procedures for survey design. Building IA-58 is specifically evaluated in:
Revised Final Site Inspection Report. Building IA-58 Radiological Survey (Gilbane, 2017).
The radiological survey results demonstrate that the levels of radioactivity are below the derived concentration guideline levels and are comparable to background levels represented by a reference area. Based on the results of the radiological survey, the reports recommended no further action for radiological contaminants under CERCLA. This resulted in a “no further comment” letter from the California Department of Public Health Radiological Division. However, EPA has delayed providing comments pending resolution of radiological technical issues at Hunters Point Naval Shipyard that may be relevant to the Concord Work Plan. In March 2023, EPA issued a concurrence for No Further Action at Building IA-58. The Navy is now preparing additional scoping surveys for the remaining buildings. Transfer dates currently unknown.
C1.5 Runway Debris Area
The Runway Debris Area (RDA) is approximately 150 acres and is located in the western portion of the Public Benefit Conveyance (Figure 1). This area includes a separately identified area known as the Southern Railroad Revetment Area (SRRA). In 2013, munitions-related items were observed in the area during a preliminary detector-aided visual survey. Based on a review of historical aerial imagery, the former airfield was constructed in the early 1940s. Historical photographs also indicate that the former airfield was used to store and sort aircraft and related materials, because metal debris was identified in several areas along the former runways and taxiways. The airfield consists of a north-south- oriented runway and an east-west-oriented runway. Until 1946, portions of the RDA were used for maintenance and synchronization of aircraft-mounted machine guns.
7 City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
Page C7
The southern portion of RDA is located south of the east-west oriented runway and includes land surrounding the former Runway Apron Fuel/Septic System Area and land to the west-southwest where munitions-related items certified as material documented as safe (MDAS) were encountered in 2013 during a preliminary detector-aided visual survey.
A supplemental Site Inspection was performed in 2019 (Final Supplemental Site Investigation for the Runway Debris Area and Southern Railroad Revetment Area (December, 2020)). The supplemental inspection included detector-aided surface clearance, digital geophysical mapping and subsurface investigation and removal.
The SI found no munitions-related debris in the SRRA, in the northern portion of the RDA, and recommended no further actions for this 61-acre area. The SI did recommend further investigation and removal within the remaining 76 acres of the RDA as well as chemical investigation of soil and ground water.
The Navy completed an Engineering Evaluation/Cost Analysis for the site in February 2023, and an Action Memorandum and Removal Action Work Plan are currently in progress. The schedule for transfer of this area is unknown at this time but estimated to be 2030 or later.
C1.6 Site 22 Group 6 Magazine Area
IR Site 22 is located in the central portion of the Concord Reuse Project (Figure 1) and is approximately 531 acres, including 14 buildings and 116 ammunition magazines connected by a series of parallel roads and railroad spurs. All bunkers and magazines have been empty and sealed since 2001, and the site is used for cattle grazing.
Multiple investigations conducted to delineate the nature and extent of arsenic contamination are summarized in Final Remedial Investigation Report for Installation Restoration Site 22, Naval Weapons Station Seal Beach Detachment Concord, Concord, California. Tetra Tech EM Inc., 2007.
Surface soil was identified in the investigation as the medium of concern at Site 22, and arsenic was identified as the chemical of concern for potential future residents. The Navy has committed to the City and the EPA to a clean-up standard of unrestricted use where an exposure pathway exists. The Navy is currently evaluating the effectiveness of phytoremediation as a remedy, and preparing a Work Plan for Pre-Remedial Design Characterization. Transfer schedule for this property is unknown.
C1.7 Site 22A (Group 2)
IR Site 22A consists of five separate groups of munitions storage magazines connected by roads and railroad spurs and surrounding open grassland in the central portion of the CRP Area (Figure 1). Of these five magazines, only a
8 City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
Page C8
portion of Magazine Group 2 is within the EDC. Magazine Group 2 contains 39 magazines and is approximately 154 acres.
The Navy, EPA, and the State signed a ROD for IR Site 22A in 2015 (Final Record of Decision for Installation Restoration Site 22A Former Naval Weapons Station Seal Beach Detachment Concord, Concord, California October 7, 2015).
The ROD documents that no action is necessary for arsenic in soil at Site 22A (Magazine Group 2) and acknowledges further investigation under the radiological program is required at 35 magazines within Site 22A (Magazine Group 2). All of the magazines within IR Site 22A (Magazine Group 2) are in a Site Investigation/Scoping Survey phase. Potential transfer dates are unknown at this time.
Appendix D
Schools
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page D1
D1 Purpose
This memo documents the background research and correspondence with the Mt.
Diablo Unified School District (MDUSD) regarding anticipated new student generation (kindergarten through 12th grade, K-12) and the school facilities needed to support the students as a result of the Concord Reuse Project (CRP), which will result in development on portions of the former Concord Naval Weapons Station (CNWS). The LRA and selected Master Developer will continue this conversation with MDUSD as the planning progresses. Further details on student generation and supportive school facilities will be documented in the Specific Plan and/or future planning documents.
D2 Background
D2.1 Prior planning
The LRA has collaborated with MDUSD to understand the expected number of K-12 students as the CRP is built out and school facilities needed to support the project’s population throughout the CRP planning process, including during the Reuse and Area Plan stages. Those documents were adopted in 2010 and 2012 respectively. See the RFQ for more details on the CRP planning process overall but note that the total number of projected housing units has not varied between the Reuse Plan and Area Plan, with both allowing up to approximately 12,200 housing units.
The 2010 Reuse Plan Environmental Impact Report (EIR) documented the existing public-school facilities served by MDUSD and calculated the approximate number of K-12 students generated and facilities needed to support new student generation based on the Reuse Plan development program. Because there are no existing public schools in the CRP Area, new facilities may be built on-site (up to four elementary schools, one middle school, and one high school) and/or students may fill the capacity at existing nearby schools. The 2010 Reuse Plan EIR calculations are provided below. The Preferred Alternative referenced in the table is the Reuse Plan, and also served as the basis for the CRP Area Plan (General Plan document adopted in 2012) development program. See Appendix A for details of the Area Plan development program.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page D2
Source: 2010 EIR.
Source: 2010 EIR.
Consistent with the Reuse Plan, the Area Plan assumed that new school facilities will be integrated into the districtwide system to serve the residents of CRP Area neighborhoods as well as neighborhoods throughout the district.
D2.2 MDUSD 2018 Facilities Master Plan
MDUSD’s 2018 Facilities Master Plan does not refer to the CRP and resulting new student generation. However, the plan does indicate future campus growth and enrollment in its master plan diagrams and demographic projections.
D3 Recent (2019-2021) LRA-MDUSD
Discussions
In February 2019, the LRA met with MDUSD during the Lennar-led Specific Plan process. While progress was made in 2019, the process did not result in a definitive conclusion as to the number or location of schools required to serve the new population as a result of the CRP. The LRA and selected Master Developer will need to meet further with MDUSD to come to conclusion on these issues.
The LRA and MDUSD discussed updated student generation rates, school siting, and MDUSD’s Facilities Master Plan. This meeting resulted in a set of follow-up action items. In June 2019 the LRA responded to these action items in a memo.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page D3
The memo (dated May 10, 2019) includes:
• The number of new K-12 students the LRA expects would be generated from the CRP (updated from the 2010 EIR and based on Lennar’s development program).
• Available capacity for new students to enroll in existing (2019) MDUSD schools. • Total square feet (sf) and number of new school facilities the LRA expects would be needed to support the Project’s student generation. • A list of follow-up questions to the MDUSD based on the memo’s findings.
The memo findings are based on:
• Lennar’s August 15, 2018 proposed residential unit development program, which was consistent with the Area Plan at approximately 12,000 residential units. Note the adjacent Coast Guard Property, which was not included in the Area Plan, was previously included in the Specific Plan. At this time the LRA now expects the Coast Guard development to run separately on its own timeline from the Project, upon conclusion of the General Services Administration (GSA) auction of the property.
• 2018-2019 MDUSD enrollment numbers and total square feet per school from LPA (MDUSD consultant)
• A 2018 MDUSD report including student generation factors (SGFs); square feet/student assumptions; number of students/school assumptions.
Note that this memo assumed and responded to Lennar’s administrative draft Specific Plan development program. The assumptions for student generation and site facilities will need to be revisited after the selected Master Developer creates a new proposed development program. However, the findings will help inform a new developer because the maximum buildout number of housing units, as well as distribution of types of units, were based on the Area Plan, which continues to regulate development of the CRP.
D3.1 Student generation
Based on Lennar’s Specific Plan development program, the CRP would have generated approximately 3,876 K-12 students at full buildout. Table D 1 shows breakdown by phase and school type.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page D4
Table D 1 Summary of student generation
School type Phase 1* Phase 2 Phase 3 Total
Elementary school 820 648 490 1,958
Middle school 380 303 228 911
High school 418 335 254 1,007
Total 1,618 1,286 972 3,876
* Phase 1 included the BART and Coast Guard residential units.
D3.2 School facilities
The 2010 EIR assumed growth in the districtwide student population through the duration of CRP buildout. However, in 2014, MDUSD confirmed with the City a decline in enrollment and the closing of two schools (Holbrook Elementary and Glenbrook Middle, both located near the Base) due to the decline. MDUSD reopened Holbrook Elementary in 2017. Capacity of existing schools is an important component in calculating the demand for new schools, and this section used the information available in 2019 to connect existing capacity with projected demand.
Arup used the sf/student and number of students/school assumptions from MDUSD to identify:
• amount of sf needed
• number of schools needed
• available capacity for new students at existing schools.
The findings showed that existing elementary, middle, and high schools had limited capacity for a portion of the students generated per Lennar’s development program. The 2019 memo identified existing schools that could accommodate students from the CRP during different phases of development that would result in the least amount of distribution of CRP students among different schools. For example, if an existing school has capacity for a portion of Phase 1 students and a portion of Phase 2 students, but has capacity for all Phase 3 students, it may be more appropriate to have students enroll at the existing school in Phase 3 only.
Note that as of January 2021, MDUSD entered into a 15-year lease agreement for Glenbrook Middle to be utilized as a charter school. Glenbrook Middle is just west of the Project site and a prime location for new middle school students.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page D5
D3.3 Total sf and number of schools needed for
students generated
Arup calculated total sf and number of schools needed using student generation, remaining capacities in existing schools, sf/student, and number of students/school assumptions.
The calculations indicated three elementary, one middle, and one high school are needed. It was found at that time, if existing schools enrolled students, the sf needed per new school could be reduced.
The 2010 EIR identified that the Project would require four new elementary schools, one new middle school, and one new high school. The 2019 memo reflected a smaller number of students based on more current assumptions than the 2010 EIR. The lower student generation resulted in a lower number of schools needed.
Because the student generation and number of schools calculated in this 2019 memo differ from 2010, the LRA asked MDUSD the following questions:
• Do the SGFs (student generation factors) in the 2018 MDUSD report reflect household trends? The 2018 SGFs are lower than the 2010 EIR SGFs, which seems counterintuitive to the rising cost of housing and growing household sizes, particularly in multi-family housing.
• Multiplying the sf/student by the number of students/school assumptions results in an assumed size (in sf) of schools. The calculation results in much larger sf than the actual existing elementary and middle schools. This could be because the sf/student and students/school assumptions include all facilities and not just classroom square footage, however this is not clear from the MDUSD report. It is worth checking these assumptions and if they are the most accurate assumptions to use.
• For elementary and middle schools, is there a push to build more, smaller schools (instead of fewer schools but with larger capacities)? Report findings show sf that are higher than all the existing elementary and middle schools reviewed in this memo. If schools are built at sizes similar to or smaller than existing schools, a fourth elementary school could be needed, consistent with the 2010 EIR projections.
D3.4 Student Demographics
The MDUSD retained Davis Demographics to provide updated enrollment projections and trends. Those recent population projections can be found in their latest document, Ten Year Student Population Projections, dated February 22, 2022 linked here, or can be obtained from the district. Student generation and capacity within the MDUSD schools, specific to the CRP, will need to be re- examined for the CRP Specific Plan.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page D6
D4 Oil Pipeline Siting Considerations
While the LRA was working with Lennar on their administrative draft Specific Plan, the more detailed planning included a review of the three oil pipelines that cross the CNWS property. They are located in a parallel alignment from the southwestern end of the CNWS along the western border, until reaching Willow Pass Road, at which point the pipelines head west across the Village Neighborhood in the airfield area and intersect the former Coast Guard Property between Victory Village and Quinault Village. California regulations set the minimum distance between sites for school facilities and pipelines. Section 14010 of Title 5 of the California Code of Regulations establishes standards for construction of school facilities which prevent a school site from being located within 1,500 feet of a pipeline easement that poses a safety hazard as determined by a risk analysis study.6 School properties must be sited to maintain this minimum setback distance. This regulation limits the places in the CRP Area where schools may be sited and will need to be considered in locating schools moving forward.
D5 Development Considerations
The CRP needs to bear the expense for new school capacity needed based on projected student yield. The district’s bond is currently encumbered for other facility needs, and statutory development impact fees are not adequate.
6 California Code of Regulations Title 5 School Facilities Construction standards is available on the Department of Education website: http://www.cde.ca.gov/ls/fa/sf/title5regs.asp. The Department of Education also provides a guidance protocol on assessing school site pipeline risk:
http://www.cde.ca.gov/ls/fa/sf/pipeline.asp.
Appendix E
Natural Resources Permitting
Framework
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page E1
E1 Development of Master Natural Resources
Permitting Framework
The concept of addressing natural resource impacts and permitting for the Concord Reuse Project (CRP) through a comprehensive, sitewide permitting process – as opposed to having future individual development projects address these issues separately on a project-by-project basis – was requested by several state and federal resource agencies and community groups during the City of Concord’s (City) reuse planning process. The City Council committed to pursue this approach in February 2010 when it adopted the Reuse Plan and again in 2012 when it adopted the Concord Reuse Project Area Plan (CRP Area Plan).
The City crafted a sitewide permitting approach by reaching out to the U.S. Army Corps of Engineers (ACOE), U.S. Fish and Wildlife Service (USFWS), California Department of Fish and Game (now California Department of Fish and Wildlife) (CDFW), and San Francisco Bay Regional Water Quality Control Board (RWQCB). The following sitewide permitting framework describes the City’s approach to sitewide natural resources permitting, including roles and responsibilities as they are likely to be distributed between the City and the selected Master Developer for continuing the permitting process and implementing sitewide permits; the permitting status; and issues that will require further evaluation and cooperation between the City and its Master Developer for completing and implementing sitewide resource permits.
E2 Sitewide Permitting Framework
E2.1 Overall Approach
The City is the applicant and permittee for all sitewide resource permits and will continue to take the lead in negotiating with the resource agencies, preparing applicable permitting documents, and implementing (or overseeing implementation of) the permit conditions. Specific conditions that are applicable to development activities will be included in the City’s conditions of approval and other applicable entitlements. As part of the City’s entitlement process, the City will also include conditions that require the Master Developer (and any future Master Developers) to pay resource mitigation fees. The City expects all future developers to pay a pro rata share of the resource compliance costs, including fees to reimburse the City, regardless of which specific activities or phases of development impact specific resources. See the RFQ for further discussion of previous expenditures in support of the Project and expectations for reimbursement of the City by the Master Developer. The Master Developer’s role in implementing specific conservation measures contained in the biological and Page E1
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page E2
aquatic resource permits will focus on implementing avoidance and minimization measures applicable to development activities.
As described in more detail below, the City is nearly done with the sitewide permitting for biological resources and does not anticipate the need for coordination with the Master Developer on addressing items such as the preparation of species habitat management or restoration plans. The aquatic resource permitting is not as advanced and will require coordination between the City and the Master Developer to address infrastructure and other improvements located in or near aquatic resources, such as Mt. Diablo and Willow Pass creeks, and future water infrastructure that will be located in ecologically sensitive areas east of Mt. Diablo Creek. This will require coordination with the East Bay Regional Park District.
E2.2 Summary of Likely Sitewide Permits
The City anticipates the following regulatory documents will be issued for the CRP, and a summary of the status of these is provided below (controlling regulatory agency in brackets):
• Federal Clean Water Act Individual Permit (ACOE)
• Federal Clean Water Act Water Quality Certification/State Waste Discharge Requirements (RWQCB)
• Lake or Streambed Alteration Master 1600 Agreement (CDFW) • Federal Endangered Species Act Biological Opinion and Incidental Take Statement (USFWS)
• California Endangered Species Act Incidental Take Permit (CDFW) • National Historic Preservation Act Memorandum of Agreement (Navy/SHPO) E3 Aquatic Resources (e.g., Mt. Diablo Creek,
Willow Pass Creek, drainages, wetlands)
E3.1 Framework/Permitting Status
The City applied to the ACOE for a Clean Water Act, Section 404 Individual Permit authorizing fill of approximately 7 acres of wetlands (4.6 acres) and other jurisdictional waters (2.3 acres), and although the ACOE has suspended the application, the City intends to reactivate it once a Master Developer is selected.
The City will receive permit authorization, which it will extend to future individual developers. The City will create, enhance and preserve aquatic features, and recoup appropriate expenses through entitlements and associated agreements.
The City will apply to the RWQCB for a Section 401 Water Quality Certification Page E2 Page 107 of 170
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page E3
and State Waste Discharge Requirements and will be responsible for the permit conditions and mitigation in the same manner as the 404 permit.
The City plans to apply to CDFW for a master Section 1602 Lake or Streambed Alteration Agreement that covers modifications to Mt. Diablo Creek, Willow Pass Creek, and other drainages associated with development and flood attenuation actions, as well as ecological restoration activities. The City will be responsible for permit conditions and mitigation in the same manner as the 404 permit.
The City anticipates securing the aquatic resource permits by Summer 2025, although additional coordination with the Master Developer, regarding development plans affecting Willow Pass Creek, are needed to further the ACOE and RWQCB permitting. The Lake or Streambed Alteration Agreement (1600 Agreement) may trail the ACOE and RWQCB permits. Discussions with CDFW regarding a 1600 Agreement are less advanced and require additional restoration/flood attenuation planning before the City engages in more detailed discussions regarding the timing, phasing of work, and specific actions that will be covered by a 1600 Agreement.
E3.1.1 Wetlands
The City anticipates the CRP development will fill approximately 4.6 acres of wetlands. The City is proposing 2:1 onsite wetland creation and 1:1 preservation of existing wetlands prior to -or concurrent with- groundbreaking for the first phase of development. Both the existing wetlands and planned mitigation wetlands are located at the former airfield. The CRP Area Plan commits to preserving approximately 8.0 acres of existing wetlands at the former airfield, and hydrological modelling and evaluation indicate this area can feasibly accommodate an additional 9.2 acres of wetland creation within an approximately 50-acre wetland “preserve” shown for illustrative purposes on Figure E-1 that includes both the existing wetlands and planned mitigation wetlands. No development will be permitted within the wetland preserve, and new development will need to maintain some buffer from existing/planned wetlands. The planned mitigation wetlands and preserved wetlands will require interim and long-term management.
The City is proposing to include all of the authorized fill of wetlands as early as possible in the development, including wetlands that are outside of the area initially being developed. The intent is to provide all the wetland mitigation concurrent with initial development. This approach to wetland fill and mitigation is included in the City’s ACOE Section 404 Individual Permit application and will be included in the City’s request to the RWQCB for water quality certification.
The City continues to discuss this approach with the ACOE and RWQCB, but both agencies have expressed general support for consolidating wetland fill in the first phase of development along with concurrent mitigation.
Page E3 Page 108 of 170
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page E4
The former airfield is the site of remediation activities by the Navy, which are addressed further in Appendix C. However, the City anticipates the Navy will be able to complete the remediation activities in time to allow the wetland mitigation described in this section to occur concurrent with the first phase of development.
Page E4 Page 109 of 170
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page E5
Figure E-1 Wetlands
Page E5 Page 110 of 170
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page E6
E3.1.2 Other Waters (Creeks)
The City anticipates the CRP development will fill approximately 2.3 acres of “other waters.” This includes filling (and realigning) portions of Willow Pass Creek and other, smaller drainages to accommodate commercial development and fill within Mt. Diablo Creek to facilitate stormwater attenuation. In total, the loss of approximately 2.3 acres (9,823 linear feet) of other waters will require mitigation.
E3.1.3 Mt. Diablo Creek
To mitigate for the loss of other waters, the City proposes enhancing Mt. Diablo Creek’s ecological values by removing culverts, stabilizing the creek channel, and restoring and maintaining native vegetation. In addition to providing mitigation, this work will improve stormwater attenuation and achieve other CRP Area Plan creek restoration goals. Mt. Diablo Creek enhancement includes the removal of 14 concrete box culverts under existing road crossings, and the restoration of a natural channel with earth/rock substrate where each culvert has been removed.
Additional enhancements, including creation of secondary channels, riparian habitat restoration, and reconnecting the creek to its floodplain, are proposed to compensate for the loss of other waters. The City is preparing a mitigation plan describing the proposed mitigation along Mt. Diablo Creek in more detail. Note that, while not part of the mitigation, the City has identified a need for flood detention resulting from project-related changes on Mt. Diablo Creek. The most likely locations for the flood detention would be either in the East Bay Regional Park District (EBRPD) property or in the vicinity of the Tournament Sports Complex. This will require additional study. This flood detention is separate from on-site stormwater detention associated with development, which will be the responsibility of the Master Developer.
E3.1.4 Willow Pass Creek
To minimize and mitigate the fill of Willow Pass Creek, the City has proposed realigning (as opposed to piping) portions of Willow Pass Creek to retain and restore surface flows. The regulatory agencies (ACOE, RWQCB, CDFW) have expressed a strong desire to retain and enhance the functions and values of Willow Pass Creek. In response, the City has proposed realignment, re-construction, and restoration (revegetation) of Willow Pass Creek. The City has developed options for realigning the creek, including moving the majority of the channel alignment south of the proposed Delta Road, and utilizing existing culverts to cross under the Contra Costa Canal. As this realignment is expected to occur adjacent to proposed infrastructure, the City will closely coordinate this effort with the Master Developer to reduce and avoid conflicts (i.e., to incorporate the realigned creek into development plans).
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page E7
This approach to other waters mitigation is included in the City’s ACOE Section 404 Individual Permit application and will be included in the City’s request to the RWQCB for water quality certification. In addition, the fill, realigning, and creek restoration work will be included in the City’s application for a Lake or Streambed Alteration Agreement. The City has discussed its approaches to other waters with the ACOE, RWQCB, and CDFW and those discussions are ongoing.
E3.2 City and Master Developer Roles and
Responsibilities
Consistent with the City’s sitewide permitting approach, the City will continue to pursue an Individual Permit from ACOE, water quality certification from the RWQCB, and a 1600 Agreement with CDFW. The City will continue to lead the wetlands and “other waters” permitting. However, the City may request technical information from the Master Developer’s engineers or other members of its development team to ensure the proposed development does not adversely affect the existing wetlands and creeks (beyond the impacts described in the permit applications), or the City’s proposed wetland mitigation at the former airfield, and to address other issues raised by the regulatory agencies. This coordination with the Master Developer is expected to include infrastructure aspects such as roadway and bridge alignment and design, as well as design and location of stormwater infrastructure (outfalls, water quality control features, and storage).
The City will continue to take the lead on the “other waters” aspect of the permitting, including restoration of Mt. Diablo Creek, and the realignment and restoration of Willow Pass Creek. Due to the relationship between development and creek restoration, the City will coordinate the creek restoration projects with the Master Developer, and the City will coordinate closely with the Master Developer on technical aspects that intersect with specific plan infrastructure plans and design.
To ensure the sitewide permitting continues to move forward, the City expects to collaborate closely with the Master Developer as a key partner and stakeholder in successful sitewide permitting. Collaboration will include the following specific responsibilities and include regular meetings, communication, and sharing of work-in-progress and final documents and designs:
• The City and its consultants will continue to process a sitewide Section 404 Individual Permit and water quality certification/waste discharge requirements.
• The City and Master Developer will coordinate their hydrological, stormwater, and grading analyses associated with Mt. Diablo Creek.
• The Master Developer team will take the lead on infrastructure planning to support development of the Specific Plan, including site grading, stormwater planning, and utilities.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page E8
• The City will seek input from the Master Developer’s engineers and planning staff to prepare regulatory documents and address regulatory questions. • The City may invite members of the Master Developer team to attend regulatory meetings, as needed to provide technical support, but the City will continue to take the lead and be the point of contact with all regulatory agencies.
E3.3 Cost Estimates for Aquatic Mitigation
The total cost associated with providing the necessary wetland mitigation, creek mitigation, and stormwater attenuation/restoration is still uncertain. For planning purposes, the City estimates the total aquatic resource costs will be approximately $51-$60M, plus the permit processing costs the City has incurred and will continue to incur. See the RFQ for further discussion of previous expenditures in support of the Project and expectations for reimbursement of the City by the Master Developer. The City will establish aquatic mitigation permitting fees to fairly allocate costs among all developers for the permit processing, implementation/oversight, and mitigation costs.
The City will evaluate potential mechanisms for funding the aquatic resource mitigation and restoration activities and will work with the Master Developer to identify and select appropriate funding mechanisms.
E4 Endangered Species Act (California tiger
salamander, California red-legged frog, and
Alameda whipsnake)
E4.1 Framework/Permitting Status
The USFWS issued a biological opinion (BO) to the Navy and ACOE for disposal and reuse of the former Naval Weapons Station in accordance with Section 7 of the federal Endangered Species Act (ESA) (Biological Opinion). The City will be responsible for implementing the BO conditions and mitigation in the same manner as the Section 404 Individual Permit and will pass through all applicable BO conditions to the Master Developer as part of the entitlements. In particular, through the entitlements, the Master Developer will be responsible for implementing the “Construction-related Avoidance and Minimization Measures for all City, EBRPD, and First Responder Training Activities” contained in the BO (as part of the BO’s Proposed Conservation Measures).
The City applied to CDFW for a sitewide California Endangered Species Act (CESA) incidental take permit. The City and CDFW are currently negotiating the terms of a sitewide CESA permit, and CDFW has informally agreed to several key terms consistent with the terms of the BO. Based on discussions to date, the
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page E9
City does not anticipate the CESA permit will require significantly different avoidance and minimization measures for construction activities or that additional compensatory mitigation will be needed beyond the measures and mitigation included in the BO.
Under the BO, approximately 3,676 acres of habitat will be preserved and enhanced to provide 2:1 mitigation. Approximately 2,417 acres of habitat will be preserved “onsite” within the property east of Mt. Diablo Creek as shown on the attached Figure E-2. The EBRPD will own and manage most of the onsite mitigation (approximately 2,398 acres and the City will own the remaining 19 acres). The EBRPD transfer is via a separate Public Benefit Conveyance (PBC) (see RFQ). An additional 1,278 acres will be preserved at a to-be-determined “offsite” location to reach the required 2:1 mitigation ratio. The offsite mitigation property must be acquired no later than the start of the second phase of construction but is not required as part of the first phase of development.
In addition to preserving 3,676 acres of habitat, three new amphibian breeding ponds will be constructed within the onsite mitigation property and some of the existing ponds will be enhanced. Some enhancements to the offsite mitigation property may be necessary as well.
The 3,676 acres of habitat will require long-term management, and this management requires a secure, irrevocable, source of funding that the City will provide through a phased endowment held by the National Fish and Wildlife Foundation. In addition, the City will provide the EBRPD with “interim” management funding for the onsite mitigation, and if the offsite mitigation is acquired before the second phase of construction, the City likely will have to provide interim management funding for the offsite property.
Under the terms of the BO, the City will establish development fees to pay for the City’s implementation of the BO, which includes funding the habitat mitigation, oversight and enforcement of the BO, and ongoing coordination with the EBRPD and USFWS (similar commitments and coordination with CDFW likely will be required under the CESA permit as well). Under the BO, development fees will be paid by one or more developers when the City transfers property to the party developing it. All future developers will be required to pay a pro rata share of the costs, including fees, to reimburse the City.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page E10
Figure E-2 Habitat Conservation Area
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page E11
E4.2 City and Master Developer Roles and
Responsibilities
Consistent with the City’s sitewide permitting approach, the City will continue to pursue a CESA permit from CDFW, implement the BO (including the preparation and submission of additional habitat management plans), and evaluate the suitability of and acquire offsite mitigation. The City does not anticipate the Master Developer will participate in the CESA permitting or BO implementation, and the Master Developer’s role will be limited to implementing the avoidance and minimization measures contained in the BO and CESA permit that are required for construction activities.
E4.3 Cost Estimates for Species Mitigation
The City and EBRPD prepared a Property Analysis Record (PAR) to evaluate and reach agreement on the costs associated with the interim and long-term habitat management (which is subject to an approved Habitat Management and Monitoring Plan) associated with the onsite mitigation. The City has also evaluated the costs associated with enhancing the onsite mitigation. The necessary endowment to support long term management of the onsite mitigation (based on the 2018 PAR) is approximately $1,340,000 and will be adjusted for inflation at the time the endowment is funded. The interim management costs are approximately $30,000-$35,000 per year, subject to an inflationary adjustment (and will be phased out as the endowment becomes available). The estimated costs for the onsite enhancements/one-time habitat costs are approximately $2M.
The primary uncertainty with regard to the species mitigation costs are the costs to acquire, and potentially enhance, the offsite mitigation, which will likely cost an estimated $32-$40M.
The mitigation costs are in addition to the permit processing costs the City has incurred and will continue to incur. The City will establish species mitigation permitting fees to fairly allocate costs among all developers for the permit processing, implementation/oversight, and mitigation costs.
E5 National Historic Preservation Act (Section
106 Consultation)
E5.1 Framework/Permitting Status
The Navy consulted with the State Historic Preservation Officer (SHPO) and consulting parties regarding the disposal and reuse of the former NWS Concord (i.e. considering the effects of the CRP Area Plan development). The City, Navy, SHPO, and EBRPD entered into a confidential memorandum of agreement
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page E12
(MOA) that resolves the adverse effects to historic properties, including to the one known historic property located within the development area. This buried historic property will be capped and preserved in place pursuant to the approved Historic Properties Treatment Plan, and the City anticipates this will be done either by the Navy in connection with its remediation work or when other natural resource mitigation work is done. The exact timing will depend on progress of the Navy remediation and transfer efforts, and timing of the Master Developer initiating development.
E5.2 City and Master Developer Roles and
Responsibilities
As a signatory to the MOA, the City will be responsible for the mitigation and will include the applicable mitigation measures (which are consistent with the existing EIR mitigation measures) in future entitlements. No further Section 106 consultation by the ACOE is anticipated. The City may seek the Master Developer’s technical (construction) assistance with capping the site.
E5.3 Cost Estimates for Historic Property Mitigation
The City has not evaluated the costs associated with capping the buried historic property but does not anticipate the costs will be significant. The work can likely be done in connection with other site preparation or mitigation work to minimize costs.
Appendix F
Standard Conditions
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page F1
F1 Cost of Preparing and Submitting
Statements
All costs incurred in preparing and submitting the Statement of Qualifications (SOQ) in response to the Request for Qualifications (RFQ) are to be borne by the Respondent and not the Local Reuse Authority (LRA) or the City of Concord (City). In no event shall the LRA or the City be liable for any costs whatsoever for the preparation and submittal of a response to this RFQ.
F2 Reservations and Options
The LRA and the City reserve the right, in its sole discretion, to award any combination of services, reject any or all proposals, and/or waive informalities, minor irregularities, inconsequential deviations, and minor variations from specifications in SOQs received. Without limiting the foregoing, the LRA reserves the right and options to: reject any or all of the submittals, including but not limited to, any submittal that is determined to contain false, misleading, or materially incomplete information; waive or modify any of the provisions of the RFQ; request modifications to the Master Developer Teams proposed by Respondents; issue addenda to this RFQ; issue subsequent RFQs; cancel or postpone the RFQ process; and/or waive any errors in SOQs it receives.
F3 Conflict of Interest Disclosure
By submission of a SOQ, the Respondent shall be deemed to represent and warrant the following to the LRA:
• No person or entity employed by the LRA or City or otherwise involved in preparing this RFQ on behalf of the LRA or City: (i) has provided any information to Respondent that was not also available to all other entities responding to the RFQ; (ii) is affiliated with or employed by Respondent or has any financial interest in Respondent; (iii) has provided any assistance to Respondent in responding to the RFQ; or (iv) will benefit financially if Respondent is selected in response to the RFQ; and
• Respondent has not offered or given to any LRA or City officer (elected or appointed) or employee any gratuity or anything of value intended to obtain favorable treatment under the RFQ or any other solicitation or other contract, and Respondent has not taken any action to induce any LRA or City officer (elected or appointed) or employee to violate the rules of ethics governing the LRA or City and its employees. Respondent has not and shall not offer, give, or agree to give anything of value either to the LRA or City, or any of its employees, agents, job shoppers, consultants, managers, or other person or
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page F2
firm representing the LRA or City, or to a member of the immediate family (i.e., a spouse, child, parent, brother, or sister) of any of the foregoing. Any such conduct shall be deemed a violation of this RFQ. As used herein, “anything of value” shall include but not be limited to any (a) favors, such as meals, entertainment, and transportation (other than that contemplated by this RFQ, if any, or any other contract with the LRA or City) which might tend to obligate an LRA or City employee to Respondent, and (b) gift, gratuity, money, goods, equipment, services, lodging, discounts not available to the general public, offers or promises of employment, loans or the cancellation thereof, preferential treatment, or business opportunity. Such term shall not include work or services rendered pursuant to any other valid LRA or City contract.
F4 Miscellaneous Provisions
• Notice of Modifications: The LRA will post on the LRA’s website (http://www.concordreuseproject.org/) any notices or information regarding cancellations, withdrawals, modifications to deadlines, and other modifications to this RFQ. Respondents shall have an obligation to check the website for any such notices and information, and the LRA shall have no duty to provide direct notice to Respondents.
• Change in Respondent Information: If after Respondent has submitted an SOQ, substantive information provided in that SOQ changes, the Respondent must notify the LRA in writing and provide updated information. The LRA reserves the right to evaluate the modified response, eliminate Respondent from further consideration, or take other action as the LRA may deem appropriate. The LRA will require similar notification and approval rights of any change to Respondent’s proposal or Master Developer Team following selection, if any.
• Restricted Communications: Upon release of this RFQ and until final selection of a Master Developer, Respondents shall not communicate with the LRA or City staff about the RFQ or issues related to the RFQ except as permitted under the terms of this RFQ. Refer to Section 5.1 Master Developer RFQ Process for formal communication dates.
• SOQs Become Property of the LRA: Once submitted, all SOQs shall become the property of the LRA and City. The LRA and City may use any and all ideas and materials included in any SOQ, whether or not Respondent is selected as the Master Developer.
• Selection Non-Binding: The selection by the LRA of one or more Respondents indicates only the LRA’s intent to permit the Respondent(s) to continue with the process outlined herein, and the selection does not constitute a commitment by the LRA or City to execute a final agreement or contract with one or more Respondents. Respondent therefore agrees and
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page F3
acknowledges that it is barred from claiming to have detrimentally relied on the LRA or City for any costs or liabilities incurred as a result of responding to this RFQ.
• California Public Records Act Requests; Confidentiality: All documents submitted in response to this RFQ will be subject to the California Public Records Act (CPRA – Government Code Section 6250 et seq.), which generally mandates the disclosure of documents in the possession of the LRA or City upon the request of any person, unless the content of the document falls within a specific exemption category. Any confidential or propriety information which Respondent believes is exempt from disclosure under the CPRA (“Confidential Information”) must be enclosed in a separate folder or envelope clearly marked as “CONFIDENTIAL/PROPRIETARY
INFORMATION” and submitted with the rest of the SOQ. Submittals where all information is so marked will be disregarded. Respondent (by virtue of submitting its SOQ) acknowledges that City has not made any representations or warranties that Respondent’s asserted Confidential Information will be exempt from disclosure under the CPRA or other applicable laws.
By submission of a SOQ, Respondent agrees that if City's City Attorney, in his or her discretion, determines that release of Respondent’s Confidential Information is required by the CPRA or other applicable laws, including pursuant to order of a court of competent jurisdiction, City may notify Respondent of City's intent to release Confidential Information. In such event Respondent will have five (5) calendar days after the date of City's notice (“Objection Period”) to deliver to City a written objection notice which includes (1) justification for non-disclosure of all or any portion of the requested Confidential Information, and (2) legally binding confirmation of Respondent’s indemnity and release obligations as set forth in these Standard Conditions (“Objection Notice”). City may release the Confidential Information if (i) City does not timely receive an Objection Notice, (ii) a final and non-appealable order by a court of competent jurisdiction requires City to release Confidential Information, or (iii) the City’s City Attorney, in his or her discretion, upon review of the Objection Notice, determines that it does not satisfy the requirements set forth in these Standard Conditions or that the requested Confidential Information is not exempt from disclosure under the CPRA or other applicable laws. If the City Attorney, in his or her discretion, determines that only a portion of the requested Confidential Information is exempt from disclosure under the CPRA or other applicable laws, City may redact, delete, or otherwise segregate the Confidential Information that will not be released from the portion to be released, and may key by footnote or other reference to the appropriate justification for not disclosing the unreleased Confidential Information. By submission of a SOQ, Respondent agrees to defend, indemnify and hold harmless City and LRA and its and their officers, officials, employees, volunteers, agents, attorneys, and representatives from and against any and all liabilities, claims, demands, damages, fines, penalties, costs and expenses (including attorneys’ fees and
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page F4
costs) arising out of or in any way connected with disclosure or non-disclosure of any of Respondent’s asserted Confidential Information.
By submission of a SOQ, Respondent waives, releases and discharges forever the City and LRA and its and their officers, officials, employees, volunteers, agents, attorneys, and representatives from any and all present and future liabilities, claims, demands, damages, fines, penalties, costs and expenses (including attorneys’ fees and costs) arising out of or in any way connected with the disclosure or non-disclosure of any such Confidential Information.
Respondent is aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides as follows:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
As such relates to the RFQ process, Respondent hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code.
• Hold Harmless: By participating in the RFQ process, each Respondent agrees to hold the LRA and City and its and their officers, employees, agents, representatives, and consultants harmless from all claims, liabilities, and costs related to all aspects of this RFQ.
• Restrictions: By participating in the RFQ process, each Respondent acknowledges that the LRA and City are subject to various laws, rules, policies and agreements that impose legal and ethical constraints upon current and former LRA and City employees and consultants with regard to post- employment restrictions vis-a-vis such employee’s or consultant’s involvement in LRA- or City-led projects.
• Accuracy of Background Information: Information provided in this RFQ, as well as in related reports by LRA or City staff or its or their consultants is provided for the convenience of the Respondents only and is not intended to be exhaustive. The accuracy or completeness of this information is not warranted by LRA or City.
• “As-Is” Property Condition: As will be addressed in more detail in the to be negotiated Term Sheet and Disposition and Development Agreement, the CNWS property will be conveyed in phases to and shall be acquired and accepted by the selected Master Developer in an “as-is” condition, without representation or warranty by the LRA or City as to physical or environmental conditions of the land, ground water or any existing structures. The LRA and City make no representations regarding the character or extent of soil or subsurface conditions or the conditions and existence of utilities that may be encountered during the course of construction of any work, development, or occupancy of the CNWS property. As prospective Master Developers,
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page F5
Respondents will be responsible for independently reviewing all available information that may be available from the Navy, environmental regulatory agencies, including the United States Environmental Protection Agency and the California Department of Toxic Substances Control, LRA, and City about existing conditions, and undertaking independent analysis of site conditions, including any environmental and health and safety issues, as applicable to that particular stage of the Master Developer selection process. • Campaign Contribution Restrictions: By participating in the RFQ process, Respondent agrees that beginning on the date of issuance of this RFQ and continuing until such time as City has selected and entered into an Exclusive Negotiating Agreement with the preferred Master Developer: (1) Respondent shall not make and agrees to ensure that its affiliates do not make, any political contribution(s) to the campaign, or any political action committee supporting election or re-election, of any appointed or elected sitting City of Concord official running for any elected office or any candidate running for elected City office; and (2) Respondent shall not solicit its employees, contractors or subcontractors to make any political contribution(s) to the campaign, or any political action committee supporting election or re-election, of any appointed or elected sitting City of Concord official running for any elected office or any candidate running for elected City office. Respondents are also encouraged to read and understand the new campaign donation law AB 1439 (https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=20212022 0SB1439) and associated FPPC and other legal decisions.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
|
Appendix G
Template Exclusive Agreement
to Negotiate
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G1
EXCLUSIVE AGREEMENT TO NEGOTIATE
by and between
CITY OF CONCORD
(“City”)
and
[COMPANY NAME]
(“Developer”)
Dated ___________________, 2023
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
TABLE OF CONTENTS
Page
4891-8160-5471 v3 Page G2
1. Incorporation of Recitals.............................................................................. 5
2. Exclusive Negotiations. ............................................................................... 5
3. Negotiating Period. ...................................................................................... 5
3.1 Preliminary Stage. ............................................................................ 5
3.2 DDA Stage. ...................................................................................... 6
3.3 Extensions. ....................................................................................... 6
4. Exclusivity of Negotiations.......................................................................... 6
5. Project Implementation. ............................................................................... 7
6. Developer’s Representations and Warranties. ............................................. 7
7. Progress Reports and Information. .............................................................. 8
8. Limitations on Effect of Agreement. ........................................................... 8
9. Defaults and Remedies. ............................................................................... 9
9.1 Default.............................................................................................. 9
9.2 Exclusive Remedies for City Default. ............................................. 9
9.3 Exclusive Remedies for Developer Default. .................................... 9
9.4 No Damages. .................................................................................... 9
9.5 Default under the Reimbursement Agreement. ............................. 10
10. Rights to and Delivery of Third-Party Materials. ...................................... 10
11. Non-Disparagement. .................................................................................. 10
11.1 Disparaging Statement. .................................................................. 10
11.2 Notice and Demand to Meet and Confer. ...................................... 11
11.3 Mediation. ...................................................................................... 11
11.4 Liquidated Damages. ..................................................................... 11
12. Campaign Contributions. ........................................................................... 12
12.1 Campaign Contribution Restrictions.............................................. 12
12.2 City Remedies. ............................................................................... 12
13. Rights Following Expiration or Termination. ............................................ 12
14. Right to Enter the Development Footprint/City Property Documents....... 13
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
TABLE OF CONTENTS
(continued)
Page
Page G3
4891-8160-5471 v3
15. Notices. ...................................................................................................... 13
16. Confidentiality of Information. .................................................................. 14
17. No Commissions. ....................................................................................... 16
18. Assignment. ............................................................................................... 16
19. Applicable Law; Venue. ............................................................................ 17
20. Severability. ............................................................................................... 17
21. Integration. ................................................................................................. 17
22. Modifications. ............................................................................................ 17
23. Waiver of Lis Pendens. .............................................................................. 17
24. Interpretation. ............................................................................................. 17
25. Authority. ................................................................................................... 18
26. Next Business Day. .................................................................................... 18
27. Joint and Several. ....................................................................................... 18
28. Counterparts. .............................................................................................. 18
29. List of Exhibits. .......................................................................................... 18
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G4
EXCLUSIVE AGREEMENT TO NEGOTIATE
THIS EXCLUSIVE AGREEMENT TO NEGOTIATE (“Agreement”), dated for reference purposes as of __________________________, 2023 (the “Effective Date”), is entered into by and between the CITY OF CONCORD, a California municipal corporation in its capacity as local reuse authority for the Concord Naval Weapons Station (“City”), and [Company Name], a [State] [company type] (“Developer”). City and Developer are sometimes referred to individually herein as a “Party” and collectively as the “Parties.”
RECITALS
A. The Concord Naval Weapons Station was once the United States Navy’s primary ammunition depot on the Pacific Coast. The United States Navy (“Navy”) vacated the approximately 5,000-acre property known as the Inland Area of the Concord Naval Weapons Station (“CRP Area”) in 1997, and in 2005 officially placed it on the base closure list. At that point, the City, acting through its City Council, was designated as the Local Reuse Authority (“LRA”) by the Department of Defense pursuant to the provisions of the federal Base Realignment and Closure Act (P.L. 101-510), as amended (“BRAC”). The City engaged in a seven-year planning process, which, among other things, culminated in the adoption of the Concord Reuse Project Area Plan (“CRP Area Plan”).
B. The CRP Area Plan provides that approximately 2,600 acres of the CRP Area will be set aside as a regional park for habitat conservation/restoration, open space, and passive recreation (“Regional Park”) pursuant to a public benefit conveyance from the United States government to a regional parks agency. An additional approximately 78 acres may be set aside in accordance with the CRP Area Plan for various public benefit uses, including, potentially, a first responder training facility (“First Responder Site”). The balance of the CRP Area comprising approximately 2,350 acres (“Development Footprint”) will be transferred by Navy to City under the economic development conveyance provisions of BRAC. The Navy will transfer the Development Footprint to City in phases, following concurrence by state and federal regulatory agencies on a Finding of Suitability for Transfer (“FOST”) with respect to the Development Footprint or portion thereof to be transferred. The Navy has completed a FOST for an initial transfer of 1,304 acres of the Development Footprint. The CRP Area, the Regional Park, and the Development Footprint are each depicted on the Site Map attached hereto as Exhibit A.
C. City issued a Request for Qualifications (“RFQ”) for development of the Development Footprint on ________, 2023. On __________, 2023 (“Selection Date”), the City Council, based on the statements of qualifications submitted in response to the RFQ, selected Developer to negotiate with City and to potentially become the master developer of a potential development project to include a mix of residential, commercial and public uses substantially consistent with the approved CRP Area Plan (“Project”) on all of the Development Footprint.
D. City and Developer desire to enter into this Agreement in order to set forth the terms under which the Parties will negotiate a detailed term sheet with respect to the Project (“Term Sheet”) which, if negotiations are successful, will be presented to the City Council for approval. If the City Council approves the Term Sheet, this Agreement also establishes procedures and standards for the negotiation and drafting of a comprehensive proposed
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G5
Disposition and Development Agreement (“DDA”) consistent with the Term Sheet providing, among other things, for City’s conveyance to Developer, subject to Developer meeting performance milestones to be set forth in the DDA, of all of the Development Footprint via multiple phased closings, and Developer’s implementation, either itself or in cooperation with one or more vertical developers, of the Project.
E. Concurrently herewith, City and Developer are entering into a reimbursement agreement (“Reimbursement Agreement”) providing for Developer’s reimbursement of certain costs to be incurred by City in connection with the planning, administration, and implementation of the proposed Project, including the negotiation and drafting of the Term Sheet and proposed DDA.
NOW, THEREFORE, City and Developer hereby mutually agree as follows:
AGREEMENTS
1. Incorporation of Recitals.
The recitals set forth above, and all defined terms set forth in such recitals and in the introductory paragraph preceding the recitals, are hereby incorporated into this Agreement as though set forth in full.
2. Exclusive Negotiations.
City and Developer agree for the Negotiating Period described in Section 3 below, to work together cooperatively to diligently negotiate and present for City Council consideration a Term Sheet, and, if the City Council approves the Term Sheet, to diligently negotiate the terms of a mutually satisfactory DDA, including a form of statutory Development Agreement as an exhibit thereto, for the conveyance to Developer, subject to Developer meeting performance milestones to be set forth in the DDA, of the Development Footprint via multiple phased closings and implementation of the Project thereon, all on terms consistent with the approved Term Sheet.
3. Negotiating Period.
The Negotiating Period will be conducted in two stages as follows:
3.1 Preliminary Stage. The first stage of the Negotiating Period (“Preliminary Stage”) shall commence on the Effective Date and expire, unless extended as provided in Section 3.3 below, one hundred twenty (120) calendar days thereafter. During the Preliminary Stage, the Parties shall diligently work together to negotiate and present to the City Council, prior to expiration of the Preliminary Stage, for Council’s consideration and potential approval a Term Sheet addressing the matters described in Exhibit B, attached hereto and such other matters agreed upon by the Parties. If the Parties fail to reach agreement on a mutually acceptable Term Sheet prior to expiration of the Preliminary Stage, either Party may terminate this Agreement by written notice to the other Party. Upon such termination, neither Party shall have any further rights or obligations under this Agreement, except as expressly set forth herein.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G6
3.2 DDA Stage.
(a) If, and only if, the Parties reach agreement on a mutually acceptable Term Sheet and the City Council approves the Term Sheet prior to expiration of the Preliminary Stage, as may be extended pursuant to Section 3.3 below, the Parties shall proceed to the second stage of the Negotiating Period (“DDA Stage”), which shall commence on the date the City Council approves the Term Sheet, and unless extended as provided in Section 3.3 below, shall expire on the date which is twenty-four (24) months thereafter, or such later date as may be mutually determined through the Term Sheet negotiations. The City Manager or designee is authorized to approve amendments to this Agreement to the extent consistent with the approved Term Sheet.
The Parties anticipate that City will continue to negotiate with the Navy during the DDA Stage regarding the transfer of the Development Footprint to the City and that Developer may be asked to participate in such negotiations as requested by City. If a DDA has not been executed by City and Developer by the expiration of the DDA Stage, then this Agreement shall terminate and neither Party shall have any further rights or obligations under this Agreement, except as set forth herein.
(b) If the Parties reach agreement on a mutually acceptable Term Sheet and such Term Sheet is approved by the City Council, Developer, at its option, may nevertheless terminate this Agreement by written notice to City delivered prior to delivery of the “Second Deposit”, as defined in the Reimbursement Agreement, in which case neither Party shall have any further rights or obligations under this Agreement, except as expressly set forth herein.
3.3 Extensions. The Preliminary Stage may be extended one or more times for a period not to exceed one hundred twenty (120) calendar days in total on City’s behalf by the City Manager or designee if such official determines in their sole discretion that the Parties have made substantial progress in their negotiations to merit such extension. Possible administrative extensions of the DDA Stage may be set forth in the Term Sheet and, if the Term Sheet is approved by the City Council, the Parties shall execute an amendment to this Agreement providing for such mutually agreed upon administrative extensions, which amendment the City Manager shall have authority to execute. Subject to approval by the City Council, either stage of the Negotiating Period may also be extended by mutual written agreement of the Parties.
4. Exclusivity of Negotiations.
During the Negotiating Period, the City shall negotiate exclusively with Developer regarding implementation of the Project. Notwithstanding the above, during the entirety of the Negotiating Period, this Agreement does not prevent City from providing information regarding the Project or implementation thereof (other than Developer’s Confidential Information as defined in Section 16 below) to persons or entities other than Developer or engaging in negotiations with other public entities, including the Navy, San Francisco Bay Area Rapid Transit District (“BART”), and East Bay Regional Park District (“EBRPD”), with respect to development, transfer and use of relevant portions of the CRP Area.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G7
5. Project Implementation.
Pursuant to the California Environmental Quality Act (“CEQA”), City certified a Final Programmatic Environmental Impact Report (“Program EIR”), adopted Overriding Findings of Significance, and adopted a Mitigation Monitoring and Reporting Program (“MMRP”) in conjunction with adoption of the Reuse Plan and adopted an Addendum to the Program EIR in connection with the CRP Area Plan. Developer acknowledges that, in conjunction with City consideration of a proposed DDA and any Specific Plan or other land use plans, entitlements, permits, or approvals for the Project (collectively the “Project Approvals”), it will be necessary to comply with CEQA at the Project level, although the Program EIR may be relied upon to the extent permitted under CEQA.
6. Developer’s Representations and Warranties.
Developer represents and warrants to City as follows:
6.1 Authority. Developer is a ____________ company duly organized in the State of ________ and in good standing under the laws of the State of California. Developer has full right, power, and lawful authority to undertake all of its obligations under this Agreement, and Developer’s execution and delivery of this Agreement, and the performance of the obligations of Developer hereunder have been duly authorized by all requisite company actions on the part of Developer.
6.2 No Conflict. Developer’s execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Developer and/or Developer’s manager or managing member, as applicable, is a party or by which it is bound.
6.3 Litigation or Other Proceedings. The litigation disclosures previously provided by Developer to City in connection with Developer’s Statement of Qualifications (“SOQ”) response to the RFQ are true and complete in all material respects. Developer is not a party to, or subject of, any development project-related litigation other than as previously disclosed to City in connection with Developer’s SOQ submittal. Further, to Developer’s knowledge, no litigation or other proceeding (whether administrative or otherwise) is outstanding or has been threatened which would prevent, hinder or delay the ability of Developer to perform its obligations under this Agreement.
6.4 Financial Statements; No Material Change in Financial Condition. The financial statements previously submitted by Developer to City in connection with Developer’s SOQ submittal are true and accurate in all material respects. There have been no material changes in Developer’s financial condition from the financial condition as reflected in the financial statements previously submitted by Developer.
6.5 No Developer Bankruptcy. As of the Effective Date, neither Developer nor Developer’s manager or managing member, as applicable, is the subject of any bankruptcy proceeding, nor has either (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by its
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G8
respective creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of its assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of its assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally.
Developer shall promptly notify City of any material change in any condition or of any event or circumstance which makes any representation or warranty of Developer under this Section 6 untrue or misleading.
7. Progress Reports and Information.
Within ten (10) calendar days following either Party’s request, which may be made from time to time during the Negotiating Period, the other Party shall submit to the requesting Party a written progress report advising the requesting Party on the status of all work being undertaken by or on its behalf and, in the case of the City, the costs incurred in connection with such work.
Further, City will provide, or make available to Developer for its review as reasonably requested by Developer, all information regarding the Development Footprint reasonably available to City, including all non-privileged information concerning the CRP Area, CRP Area Plan, and the physical condition and development of the Development Footprint obtained or developed by City Consultants or provided to the City by the Navy or any other third parties, including prior prospective developers. The City shall not, however, be obligated to produce any documents created for the specific purpose of assisting the City in its negotiations with Developer, or information produced by any prior prospective developer that City, in its reasonable discretion, determines to be confidential or proprietary developer information.
8. Limitations on Effect of Agreement.
This Agreement (and any extension of the Negotiating Period) does not obligate either Party to enter into a DDA on or containing any particular terms. By execution of this Agreement (and any extension of the Negotiating Period), City is not committing itself to, or agreeing to, undertake disposition of the Development Footprint or any portion thereof and Developer is not committing itself to acquire the Development Footprint or any portion thereof. Execution of this Agreement by City and Developer is merely an agreement to conduct a period of diligent, good faith negotiations in accordance with the terms hereof, reserving for subsequent City action the final discretion and approval regarding the execution of a DDA and all proceedings and decisions in connection therewith.
Any DDA resulting from negotiations pursuant to this Agreement shall become effective only if and after such DDA is considered and approved by the City Council, following conduct of all legally required procedures, and executed by duly authorized representatives of City and Developer. Until and unless a DDA is signed by Developer, approved by the City Council, and executed by City, no agreement drafts, actions, deliverables or communications arising from the performance of this Agreement shall impose any legally binding obligation on either Party to enter into or support entering into a DDA or be used as evidence of any oral or implied agreement by either Party to enter into any other legally binding agreement.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G9
This Agreement, which pertains only to negotiating procedures and standards between City and Developer, does not limit in any way the discretion of City in acting on any applications for any Project Approvals; provided, however, City agrees to coordinate with Developer the scheduling of meetings for Planning Commission and City Council consideration of such applications for approval. Consistent with Section 5 of this Agreement, the Parties acknowledge that CEQA compliance in connection with consideration of the Project is required, and that City retains the discretion in accordance with applicable law, before action on the Project by the City Council to: (i) identify and impose mitigation measures to mitigate significant environmental impacts, (ii) select other feasible alternatives to avoid significant environmental impacts, (iii) balance the benefits of the Project against any significant environmental impacts prior to taking final action if such significant impacts cannot otherwise be avoided; or (iv) determine not to proceed with the Project.
9. Defaults and Remedies.
9.1 Default. Failure by either Party to negotiate in good faith, and without unreasonable delay, as provided in this Agreement constitutes an event of default hereunder.
Except as otherwise set forth herein with respect to City’s immediate right to terminate the Agreement under Section 11 or Section 12, the non-defaulting Party shall give written notice of a default to the defaulting Party, specifying the nature of the default and the required action to cure the default. If such default remains uncured ten (10) calendar days after receipt by the defaulting Party of such notice in the case of a default on an obligation to pay or reimburse money, or thirty (30) calendar days after receipt of such notice in the case of all other defaults, the non-defaulting Party may exercise the remedies set forth in Section 9.2 or Section 9.3 below.
9.2 Exclusive Remedies for City Default. In the event of an uncured default by City, Developer’s sole and exclusive remedy is to terminate this Agreement. From and after such termination neither Party shall have any further right, remedy, or obligation under this Agreement, except for those surviving rights and obligations of the Parties as set forth in Sections 10, 11, 16 and 17 hereof.
9.3 Exclusive Remedies for Developer Default. Except as provided in Section 11 below, in the event of an uncured default by Developer, City’s sole and exclusive remedy shall be to terminate this Agreement. Following such termination, neither Party will have any right, remedy, or obligation under this Agreement, except for those surviving rights and obligations of the Parties as set forth in Sections 10, 11, 16 and 17 hereof. Nothing herein shall be deemed to limit the City’s rights and remedies under the Reimbursement Agreement.
9.4 No Damages. Except as provided in Section 11 below, neither Party shall have any liability to the other for damages or otherwise for any default, nor shall either Party have any other claims with respect to performance or non-performance by the other Party under this Agreement. Subject to Section 11 below, each Party specifically waives and releases any such rights or claims they may otherwise have at law or in equity in the event of a default by the other Party, including the right to recover actual, consequential, special, or punitive damages from the defaulting Party. For avoidance of doubt, Developer acknowledges that City has the
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G10
right to recover actual damages under the Reimbursement Agreement, subject to the terms of that agreement.
9.5 Default under the Reimbursement Agreement. Developer’s default under the Reimbursement Agreement following notice and expiration of applicable cure periods shall be deemed a default by Developer under this Agreement, and City shall have the right to immediately terminate this Agreement by written notice to Developer without having to provide any further opportunity to cure under Section 9.1 above.
10. Rights to and Delivery of Third-Party Materials.
Once submitted to the City, all documents, reports, and other work product generated by third parties for Developer with respect to the Project that Developer owns or has the right to transfer, including without limitation: (i) all environmental reports, geotechnical reports, surveys, marketing reports, lot studies and improvement plans; (ii) design concepts and draft land use and infrastructure plans, including any draft specific plan, and any other permits and approvals for any other land use entitlements; and (iii) any other relevant information or documentation relative to entitlement, approval or development of the Project (excluding only attorney client privileged communications) (collectively, “Third-Party Materials”) shall become the property of the City. Developer shall include contractual language in all contracts with the engineers, designers, architects and other consultants producing such Third-Party Materials (the “Third- Party Contracts”) by which those firms and consultants consent to future use of such Third- Party Materials by City and its designees without payment by City or its designees, provided such contractual language will not require those third-party consultants to continue working with the City. Such contractual language must be in a form reasonably acceptable to the City Attorney.
Notwithstanding any other provision of this Agreement, if this Agreement is terminated by either Party prior to expiration of the Negotiating Period, or by City pursuant to Section 9.3, or if this Agreement expires without the Parties having entered into a DDA, then Developer shall promptly, at no cost and without warranty as to correctness, deliver to City copies of all Third- Party Materials in such formats as reasonably requested by City. Except for Third-Party Materials subject to Section 16 below, and subject to reasonable restrictions on the use of such Third-Party Materials in the Third-Party Contracts, the terms of which shall have been approved by the City Attorney, City, and its current and future consultants, contractors, and developers, may use all Third-Party Materials, at no cost and without warranty as to correctness, for any lawful purpose in connection with any future development or proposed development of the Development Footprint or other portion of the CRP Area. Developer’s obligations under this Section 10 shall survive the expiration or earlier termination of this Agreement.
11. Non-Disparagement.
11.1 Disparaging Statement. Developer agrees that the Developer Restricted Individuals, as defined in Section 11.6, shall refrain from making, or soliciting another to make, any public statements (e.g., statements made in press releases, traditional and social media, public hearings, community meetings, or similar public forums), or authorizing any statements to be reported as being attributed to the Developer, that are disparaging or derogatory of any City
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G11
Council member or City staffer, and which are intended to and which would reasonably be expected to injure the reputation or business of such individual (hereafter a “Disparaging Statement”). By way of example only (and without limitation), a Disparaging Statement will not include statements by any Developer Restricted Individual that disagrees with, objects to or challenges statements made by a member of City Council or City staff about the Project.
11.2 Notice and Demand to Meet and Confer. In the event where City claims that Developer has made or authorized a Disparaging Statement in violation of this Section 11, City shall provide notice of such claimed violation in accordance with Section 15, along with a demand to Developer to meet and confer within five (5) business days of Developer’s receipt of said notice.
11.3 Mediation. If the Parties are unable to resolve the dispute at the meeting (or such longer time as each Party may agree in its sole discretion), the Parties agree to try and settle the dispute by mediation. Mediation shall be conducted by JAMS, Inc. (“JAMS”), in accordance with JAMS mediation rules and procedures (including those relating to confidentiality), and shall occur at JAMS’ facility in Walnut Creek, California. Mediation shall not extend beyond one half-day absent mutual agreement of the Parties. Developer agrees to pay all costs charged by JAMS as a result of any mediation occurring pursuant to this Section 11.3.
11.4 Liquidated Damages. DEVELOPER ACKNOWLEDGES AND AGREES THAT
COMMISSION OR AUTHORIZATION OF A DISPARAGING STATEMENT BY
DEVELOPER MAY RESULT IN IRREPARABLE HARM TO THE CITY AND THAT
THERE IS NO ADEQUATE REMEDY AT LAW FOR A VIOLATION OF THIS SECTION 11. DEVELOPER FURTHER ACKNOWLEDGES AND AGREES THAT IN THE
EVENT OF SUCH VIOLATION, CITY WILL SUFFER DAMAGES, INCLUDING LOST
OPPORTUNITIES TO PURSUE OTHER DEVELOPMENT AND DELAYED RECEIPT OF
PROPERTY TAX REVENUES FROM THE PROJECT, AND THAT IT WOULD BE
IMPRACTICABLE AND INFEASIBLE TO FIX THE ACTUAL AMOUNT OF SUCH DAMAGES. THEREFORE, IF DEVELOPER IS IN BREACH OF ITS OBLIGATIONS UNDER THIS SECTION 11, AND ASSUMING CITY HAS EXHAUSTED THE PROCEDURES DESCRIBED IN SECTION 11.2 AND SECTION 11.3, CITY MAY (I) IF
THIS AGREEMENT HAS NOT ALREADY EXPIRED OR BEEN TERMINATED,
IMMEDIATELY TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO
DEVELOPER, AND (II) RETAIN THE UNEXPENDED PORTION OF ANY DEPOSIT
DEVELOPER HAS MADE UNDER THE REIMBURSEMENT AGREEMENT, PLUS ANY INTEREST THEREON, BUT NOT TO EXCEED $100,000, AS FIXED AND LIQUIDATED DAMAGES AND NOT AS A PENALTY. DEVELOPER’S OBLIGATIONS UNDER THIS SECTION 11 SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT. BY PLACING THE INITIALS OF THE AGENT EXECUTING THIS
AGREEMENT ON ITS BEHALF BELOW, EACH PARTY SPECIFICALLY CONFIRMS
THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH
PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS
AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION.
INITIALS: DEVELOPER _______________ CITY _______________
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G12
11.5 Developer’s Rights to Object. Developer’s objections to any development conditions made in a public hearing, its exercise of its administrative or judicial rights of appeal of any action by the City, or its response to a Disparaging Statement made about Developer, in connection with the proposed Project or Project Entitlements shall not, by themselves, be deemed a Disparaging Statement or a violation of this Section.
11.6 Developer Restricted Individuals. The following individuals (the “Developer Restricted Individuals”) are subject to this Section 11 and Section 12 below:
______________________________________________.
12. Campaign Contributions.
12.1 Campaign Contribution Restrictions. During the term of this Agreement, Developer shall ensure that the Developer Restricted Individuals do not make, or solicit another to make, any political contribution(s) to the campaign, or any political action committee supporting election or re-election, of (i) any appointed or elected sitting City of Concord official running for any elected office, or (ii) any candidate running for elected City office. Developer further agrees that the Developer Restricted Individuals shall not solicit its or their or Developer’s employees, contractors, or subcontractors working on the Project to make any political contribution(s) to the campaign, or any political action committee supporting election or re-election, of (i) any appointed or elected sitting City of Concord official running for any elected office, or (ii) any candidate running for elected City office. Within ten (10) business days of the execution of this Agreement (or, in the case of newly appointed or newly elected officials, within ten (10) business days of such appointment or election), the City Manager shall advise all appointed or elected sitting City of Concord officials in writing of the restrictions on campaign contributions set forth in this Section 12.1.
12.2 City Remedies. In the event City has reason to believe Developer has violated its obligations under this Section 12, City may notify Developer in writing which notice shall include a brief recitation of the facts City believes constitute evidence of such violation.
Developer shall have fifteen (15) days following receipt of such notice to provide any exculpatory evidence demonstrating that no such violation has occurred. Following expiration of such 15-day period City may immediately terminate this Agreement by written notice to Developer, and without affording Developer any opportunity to cure such violation, if City determines that Developer has violated its obligations under this Section 12.
13. Rights Following Expiration or Termination.
If a DDA is signed by Developer, approved by the City Council, and executed by City, the ongoing rights and obligations of the Parties shall be as specified in the DDA and any ancillary agreements. If, at the time this Agreement expires or is terminated in accordance with its terms, the Parties have not entered into a DDA, then City has the absolute right to pursue disposition and development of all or portion of the Development Footprint in any manner and with any party or parties it deems appropriate.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G13
14. Right to Enter the Development Footprint/City Property Documents.
City shall work with the Navy to provide Developer, its employees, agents, and contractors with a right of entry or other similar access during the Negotiation Period to pertinent portions of the Development Footprint for the purpose of conducting inspections, tests, examinations, surveys, studies, appraisals, and marketing tours. Any right of entry shall be in a form acceptable to City, Navy, and Developer and consistent with any existing right of entry in favor of the City or any prior right of entry provided by the City to former prospective developers or purchasers of the Development Footprint.
15. Notices.
Any approval, disapproval, demand or other notice which any Party may desire to give to the other Party under this Agreement must be in writing and may be given by any commercially acceptable means that offers confirmation of receipt, including by certified or registered U.S.
Mail, postage prepaid and return receipt requested, personal delivery, overnight courier, or email, to the Party to whom the notice is directed at the address of the Party as set forth below, or at any other address as that Party may later designate by notice:
To Developer: _______________________
_______________________
_______________________
Telephone: _____________
Email: _________________
With a copy to _______________________
_______________________
_______________________
_______________________
Telephone: _____________
Email: _________________
To City: City of Concord
Local Reuse Authority
1950 Parkside Drive
Concord, California
Attention: LRA Executive Director
Telephone: (925) 671-3001
Email: [email protected]
and: [email protected]
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G14
With copies to: City of Concord
1950 Parkside Drive
Concord, California
Attention: City Attorney
Telephone: (925) 671-3160
Email: [email protected]
and: [email protected]
And Burke, Williams & Sorensen, LLP
1999 Harrison Street, Suite 1650
Oakland, CA 94612-3520
Attention: Gerald J. Ramiza
Telephone: (510) 273-8780
Email: [email protected]
Any notice shall be deemed given on the date of delivery if delivered by certified or registered mail, personal delivery to the recipient, or overnight courier if on a business day (and if not on a business day, then on the next business day) or when delivery is refused. Any notice shall be deemed given when received if sent by email if received before 5:00 PM local time (of the recipient) on a business day, and otherwise on the next business day.
16. Confidentiality of Information.
Any information provided by Developer to City, including pro formas and other financial projections (whether in written, graphic, electronic or any other form) that is clearly marked as “CONFIDENTIAL/PROPRIETARY INFORMATION” (“Confidential Information”) is subject to the provisions of this Section 16. Subject to the terms of this Section, City shall endeavor to prevent disclosure of the Confidential Information to any third parties, except as may be required by the California Public Records Act (Government Code Section 6253, et seq.) or other applicable local, state, or federal law (collectively, “Public Disclosure Laws”).
Notwithstanding the preceding sentence, City may disclose Confidential Information to its officials, employees, agents, attorneys, and advisors (“City Representatives”), but only to the extent necessary to carry out the purpose for which the Confidential Information was disclosed.
Developer acknowledges that City has not made any representations or warranties that any Confidential Information City receives from Developer will be exempt from disclosure under any Public Disclosure Laws.
In the event the City’s legal counsel determines that the release of the Confidential Information is required by Public Disclosure Laws, or order of a court of competent jurisdiction, City shall notify Developer, prior to disclosure of such Confidential Information, of City’s intention to release the Confidential Information. Developer shall have five (5) calendar days after the date of City's notice (“Objection Period”) to deliver to City a written objection notice, which includes (a) justification for non-disclosure of all or any portion of the requested Confidential Information, and (b) legally binding confirmation of Developer’s indemnity and release obligations as set forth in this section (“Objection Notice”). City may release the Confidential Information if (i) City does not timely receive an Objection Notice, (ii) a final and
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G15
non-appealable order by a court of competent jurisdiction requires City to release Confidential Information, or (iii) the City’s City Attorney, in their reasonable discretion, upon review of the Objection Notice, notifies Developer in writing that they have determined that it does not satisfy the requirements set forth in this Section or that the requested Confidential Information is not exempt from disclosure under the Public Disclosure Laws and Developer then fails to file and obtain a temporary restraining order or other similar injunctive relief preventing such disclosure within ten (10) days after receipt of the City Attorney’s determination. If the City Attorney, in their reasonable discretion determines that only a portion of the requested Confidential Information is exempt from disclosure under the Public Disclosure Laws, City may redact, delete or otherwise segregate the Confidential Information that will not be released from the non- exempt portion to be released, and may key by footnote or other reference to the appropriate justification for not disclosing the unreleased Confidential Information.
Developer acknowledges that in connection with City Council’s consideration of any DDA as contemplated by this Agreement, City will need to present a summary of Developer’s financial projections, including anticipated costs of development, anticipated project revenues, and returns on equity, cost and/or investment. If this Agreement is terminated without the execution of a DDA, City shall return to Developer any Confidential Information within thirty (30) days.
To the extent Developer believes the Confidential Information is not subject to Public Disclosure Laws, Developer may, at no cost to the City, file any necessary legal actions to enjoin or prevent the disclosure of the Confidential Information.
Developer shall defend, indemnify, and hold harmless City and its officers, officials, employees, volunteers, agents, attorneys, and representatives (collectively, “Indemnitees”) from and against any and all Claims arising out of or in any way connected with disclosure or non- disclosure of any Confidential Information. “Claim” or “Claims” means any and all present and future liabilities, claims, demands, obligations, grievances, judgments, orders, injunctions, causes of action, assessments, losses, costs, damages, fines, penalties, expenses, suits or actions of every name, kind, description and nature (including attorneys’ fees and costs), known or unknown, and whether now existing or hereafter arising, including all costs, attorneys’ fees, expenses and liabilities incurred in the defense of any legal challenge brought by a third-party seeking or objecting to the disclosure of that Confidential Information. Developer’s obligations under this Section 16 shall survive the expiration or termination of this Agreement.
Developer hereby waives, releases and discharges forever the Indemnitees from any and all present and future Claims arising out of or in any way connected with any Confidential Information. Developer aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G16
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.
As such relates to this Section, Developer hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code.
____________________
Developer Initials
The restrictions set forth herein shall not apply to Confidential Information to the extent such Confidential Information: (i) is now, or hereafter becomes, through no act or failure to act on the part of City, generally known or available; (ii) is known by the City at the time of receiving such information as evidenced by City’s public records; (iii) is hereafter furnished to City by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by City without any breach of this Agreement and without any use of or access to Developer’s Confidential Information as evidenced by City’s records; (v) is not clearly marked “CONFIDENTIAL/PROPRIETARY INFORMATION” as provided above (except where Developer notifies City in writing, prior to any disclosure of the Confidential Information, that omission of the “CONFIDENTIAL/PROPRIETARY INFORMATION” mark was inadvertent), or (vi) is the subject of a written permission to disclose provided by Developer to City.
Nothing herein shall prohibit Developer from seeking injunctive relief to prevent disclosure of information which Developer believes qualifies as Confidential Information.
17. No Commissions.
Each Party represents and warrants that it has not entered into any agreement, and has no obligation, to pay any real estate commission in connection with the transaction contemplated by this Agreement. If a real estate commission is claimed through either Party in connection with the potential transaction contemplated by this Agreement or any resulting DDA, then the Party through whom the commission is claimed shall indemnify, defend, and hold the other Party harmless from any liability related to such commission. The provisions of this Section 17 shall survive termination of this Agreement.
18. Assignment.
The qualifications and identity of Developer and its parent company, ___________ [identify parent company], were material considerations by City in selecting Developer.
Accordingly, except as provided below, Developer may not assign all or any portion of this Agreement to any other person or entity, without the prior written approval of the City Council.
Any purported voluntary or involuntary assignment by Developer of this Agreement without such City written approval shall be null and void, except as provided below. Notwithstanding the foregoing, Developer may assign this Agreement in its entirety without approval by the City to an Affiliate (defined below) of Developer, provided that ______________ [identify parent
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G17
company] (a) has responsibility for the day-to-day entitlement and development activities of such entity; and (b) has majority voting and profits interests in such entity. Developer shall provide not less than ten (10) business days’ prior written notice to City of any such permitted assignment. As used herein, the term “Affiliate” means an entity which controls, in controlled by or under common control with Developer.
19. Applicable Law; Venue.
This Agreement shall be construed in accordance with the law of the State of California, including its statutes of limitation, but without reference to choice of laws principles, and venue for any action under this Agreement shall be in Contra Costa County, California.
20. Severability.
If any provision of this Agreement or the application of any such provision shall be held by a court of competent jurisdiction to be invalid, void or unenforceable to any extent, the remaining provisions of this Agreement and the application thereof shall remain in full force and effect and shall not be affected, impaired, or invalidated.
21. Integration.
This Agreement, together with the Reimbursement Agreement, contains the entire understanding between the Parties relating to the matters set forth herein. All prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged in this Agreement and shall be of no further force or effect.
22. Modifications.
Any alteration, change, or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each Party.
23. Waiver of Lis Pendens.
It is expressly understood and agreed by the Parties that no lis pendens shall be filed against any portion of the Development Footprint or any other portion of the CRP Area with respect to this Agreement or any dispute or act arising from this Agreement.
24. Interpretation.
As used in this Agreement, masculine, feminine, or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates.
The word “including” shall be construed as if followed by the words “without limitation.” Unless otherwise expressly stated, “days” means calendar days. This Agreement shall be interpreted as though prepared jointly by the Parties. Titles and captions are for convenience of reference only and do not define, describe, or limit the scope or the intent of this Agreement or any of its terms.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
4891-8160-5471 v3 Page G18
25. Authority.
Each person executing this Agreement on behalf of Developer does hereby covenant and warrant that (a) Developer is created and validly existing under the laws of ______[State]_____, (b) Developer has and is duly qualified to do business in California, (c) Developer has full corporate power and authority to enter into this Agreement and to perform all of Developer’s obligations hereunder, and (d) each person (and all of the persons if more than one signs) signing this Agreement on behalf of Developer is duly and validly authorized to do so.
26. Next Business Day.
In the event the date on which City or Developer is required to take any action under the terms of this Agreement is not a business day, the action shall be taken on the next succeeding business day.
27. Joint and Several.
If Developer consists of more than one entity or person, the obligations of Developer hereunder shall be joint and several.
28. Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement.
29. List of Exhibits.
The following Exhibit are attached hereto and incorporated herein by reference:
(a) Exhibit A -- Site Map
(b) Exhibit B -- Preliminary Stage Negotiation Matters
[Remainder of page intentionally left blank]
[Signatures on next page]
[Signature Page to Exclusive Agreement to Negotiate]
4891-8160-5471 v3 Page G19
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
CITY: DEVELOPER:
CITY OF CONCORD, a California
municipal corporation
______________________________, a
___________________________________
By: By:
Name: Valerie Barone Name:
Title: City Manager Title:
APPROVED AS TO FORM:
By:
Susanne Brown, City Attorney
Exhibit A
4891-8160-5471 v3 Page G20
EXHIBIT A
SITE MAP
| | |
Page G21
EXHIBIT B
PRELIMINARY STAGE NEGOTIATIONS MATTERS
• Determination of the Project.
• The terms under which Developer, following Navy’s conveyance of each portion of the Development Footprint to the City, would operate, manage, and maintain it on an interim basis until such time as the Development Footprint, or applicable portion thereof, is ready to be conveyed to Developer pursuant to the DDA, or the DDA has been terminated. • The terms, including conditions precedent to closing, under which City would convey the Development Footprint, or applicable portion thereof, to Developer by deed (or lease with respect to the Commercial Flex portions) in multiple phases corresponding with Developer’s phased build out of the Project, including backbone infrastructure. • The terms under which Developer would be permitted to assign or transfer its interests in the DDA to affiliates.
• The terms, including conditions precedent to closing, under which Developer would be permitted to convey subdivided, developable portions of the Development Footprint, or applicable portion thereof, to one or more vertical developers, which may or may not be affiliates of Developer, following Developer’s completion of applicable portions of the backbone infrastructure.
• The terms under which City and/or Navy may potentially receive a portion of the proceeds generated from Developer’s conveyance of subdivided, developable portions of the Development Footprint, or applicable portion thereof, to the vertical developer(s). • The terms under which Developer will interface with Navy to address the Navy’s remediation of additional hazardous materials that may be discovered on the Development Footprint, or applicable portion thereof, during development and following completion of Navy’s initial remediation program.
• Requirements regarding compliance with the City’s policies on prevailing wages, local hire and apprenticeship programs and potential Project Labor Agreements. • Requirements for implementing site-wide mitigation and monitoring in accordance with the certified Final EIR for the Reuse Plan, Addendum for the CRP Area Plan, and other environmental documents.
• Requirements for funding the ongoing costs of implementing and complying with endangered species, habitat mitigation, archaeological and other mitigation obligations. • Requirements related to compliance with affordable housing obligations and the phasing of affordable residential units.
| | |
Page G22
• Requirements related to existing legally binding agreements regarding the provision of homeless housing and the transfer of property for a food bank. • Requirements related to the phasing of development in the TOD core, as described in the CRP Area Plan, and neighborhood serving retail development. • Requirements related to phasing of public improvements, including parks and other community facilities and amenities, and any necessary modifications to phasing over time. • Requirements related to the transfer of a portion of the golf course and the provision of access through the golf course and corresponding improvements. • Criteria and guidelines for implementation of the Project, including requirements related to design standards and City design review, to be set forth in a Specific Plan. • Methods of financing the construction, installation and/or long-term maintenance of public improvements, including, potentially, via Mello-Roos Community Facilities District, Enhanced Infrastructure Finance District, Landscape and Lighting District or other tax- exempt financing vehicles.
• Provisions regarding the term of the DDA and outside dates for conveyance of land and construction of specified improvements in phases.
• The terms, including conditions precedent, under which Developer would be obligated to commence each backbone infrastructure phase.
• Terms regarding leasing of land and structures within the Development Footprint, or applicable portion thereof, including terms under which City would lease land and structures to Developer for Project related uses and terms for termination of existing leases and approval of new leases.
• The Project implementation milestones and other conditions precedent that the Developer would be required to satisfy before City would enter into subsequent exclusive negotiating agreements and/or Disposition and Development Agreements with Developer for those portions of the Development Footprint that are not addressed by the DDA. • Terms regarding remedies in the event of failure of conditions precedent and/or default at various stages (prior to land conveyance, prior to development, after partial conveyance/development, etc.).
• The terms under which City would enter into a Development Agreement with Developer with regard to the Project, including such terms as the duration of the Development Agreement, the scope of vested rights conferred, and the applicability of new or increased impact fees.
• Any other issues that the Parties mutually agree to negotiate, including terms under which Developer would potentially be compensated for amounts expended on a specific plan and
| | |
Page G23
EIR if the City Council were to approve the specific plan and EIR but then reject the proposed DDA as negotiated by City and Developer’s negotiating teams.
City of Concord Concord Naval Weapons Station
Concord Reuse Project Area Plan Implementation
Request for Master Developer Qualifications 2023
| | |
Page H1
Appendix H
CFP Term Sheet
CFP Term Sheet: The proposed Term Sheet for Disposition and Development Agreement and Statutory Development Agreement between the City of Concord, in its capacity as LRA and Concord First Partners, LLC dated November 15, 2022, which the City Council rejected on January 28, 2023.
The link to the Term Sheet can be found within the Term Sheet 2023 Folder in the Document Library at the following link.
-----Original Message-----
From: Hope Johnson <[email protected]>
Sent: Tuesday, March 14, 2023 1:40 PM
To: Obringer, Carlyn <[email protected]>; City Clerk <[email protected]>; Aliano, Dominic <[email protected]>; Birsan, Edi <[email protected]>; Hoffmeister, Laura <[email protected]>; Nakamura, Laura <[email protected]>
Cc: Bjerke, Guy <[email protected]>; Barone, Valerie <[email protected]> Subject: CNWS developer selection process Item 8a at 3/14/23 Council meeting De
ar Concord City Council:
Thi
s email is regarding the CNWS master developer selection process study session on your agenda this evening (Item 8a). Please be advised that I have copied some parties on this email who may be interested using blind cc to keep emails private.
THI
RD PARTY INTERVENTION
Co
ncord needs third party intervention. The only options for a reasonable chance at competent and unbiased master developer selection are:
1. Replace City Manager Valerie Barone and/or Redevelopment Director Guy Bjerke. They are unfortunately either unable to rise to the level of management required for this project or are too entrenched in local politics to avoid allowing the usual corrupt suspects to run the selection. What other entity would allow the same management to start a third time on a twice failed $6B project that involved two of the most criminal developers that could be selected? or
2. Re
quire a third party consultant or panel to manage the RFQ process. Meaning to completely manage it, no control at all by anyone employed at the City of Concord or elected to its public offices. This would be similar to when Catellus and Lennar were the last two competitors with one very important change:
that the third party consultant or panel would prepare the RFQ and then a developer recommendation report to Council without allowing any interference whatsoever from the City Manager, Councilmembers, or Redevelopment Director. City staff could prepare rebuttals to the consultant or panel RFQ and recommendation if needed but the RFQ and recommendation must be required to be delivered as written by the third party to council at public meetings. Remember, it was the City Manager and then Councilmember Grayson who orchestrated changing the recommendations made by the previous experts to pave the way for Lennar to become the developer (the expert panel had recommended Catellus).
The
re is no otherway. The status quo must be out of the process.
PR
OCESS SUGGESTIONS
1. No
hybrid RFQ. The hybrid approach is ridiculous and should not ever be used again. It is too vague, allowing for interference by special interests and staff out of public view. This approach allowed Seeno to hide the ball on changes it knew it needed to make to its initial proposal until it thought Concord was Attachment 2
Written Comments on RFQ Issues
too far into the Exclusive Negotiating process to back out (adding 3000 housing units, using junior units toward affordable housing count, etc.). No reasonable management team would suggest using this again, further supporting the points made in the above sections 1 and 2.
2. Developers should submit draft term sheets with their RFQ responses. Council and the public need this to evaluate what each developer assesses is needed to start the project. Without draft term sheets, Council is selecting a developer based on nothing in writing. This can only lead to further surprise changes as well as pave the way for special interests and staff to interfere in the selection process.
3. RFQ process must lead to at least two developers competing at the same time to secure the Exclusive Negotiating Agreement at a public city Council meeting. This allows each developer to try to sweeten its deal as Council hears from both developers. It allows Council to ask questions of each developer on the spot to find out if what they are being told must happen at the CNWS is true or the likely outcome.Tentative expectations for a term sheet are needed to decide which developer is best suited to exclusively negotiate further. This is how the initial process was intended to proceed until the City Manager and then Councilmember Grayson interfered in the process. The Exclusive Negotiating process is not intended to create a draft term sheet without competition; it is intended to adjust and improve upon an existing draft term sheet for Concord to get its best deal.
4. RFQ responses should be submitted to a third party consultant or panel, not to City Staff. As previously stated, this is the only way to prevent the continued biased approach we have now seen multiple times.
5. Developers should not be required to sign a PLA before submitting proposals. If Council wants to require a PLA, which it appears to be in agreement with each other to do, developers can sign and submit with their RFQ responses an acknowledgement that they will be required to sign a PLA before being awarded the Exclusive Negotiating Agreement. Their RFQ responses should include confirmation that their draft term sheets incorporate a PLA, and they should be able to explain how it is incorporated during a public city Council meeting in order to secure the Exclusive Negotiating Agreement. The construction trades should not be the point of first contact with developers with respect to an RFQ response, the City of Concord is the point of first contact. Otherwise, developers may choose to enter into an unenforceable PLA as Seeno appears to have done or the construction trades could choose to eliminate a qualified developer by refusing to coordinate with them. Not requiring a PLA be signed before submission of a response to the RFQ does not and will not prevent a PLA from being secured; Council always remains in control of requiring a PLA.
6. The RFQ should require disclosure of information related to the cleaning of contamination. CNWS is a super fund site. Developers should be required to include in responses their experience with developing contaminated sites and to disclose any related complaints they have received or lawsuits against them regarding cleanup. The responses should include written agreement to keep Council and the public informed of all cleanup related activities at public Council meetings on a set schedule.
7. No salary payments to city staff or the Redevelopment Director without public disclosure.The RFQ should make it clear that Council and the public will be provided with detailed information at public meetings on how much the developer is paying any city staff. There should be a set time for periodic disclosure to Council at a public meeting of this information. In addition, if no draft term sheet is required with the RFQ response, the developer selected for the Exclusive Negotiating Agreement should not be paying any salary to anyone employed at the City of Concord. It is an open and obvious conflict of
interest for the Redevelopment Director or any city staff to be paid by a developer with whom the staff person is supposed to be negotiating a term sheet with the best deal for Concord. No draft term sheet up front, no paid salaries from the developer.
8. RFQ should require developers to provide periodic itemized spreadsheets of expenses paid by Concord. Each developer should agree that it will keep track of any expenses it asks Concord to cover related to the project. City staff should also keep track of detailed expenses paid and each itemized list should be presented to Council at a public meeting on an ongoing and pre-determined periodic basis.
Thank you for yourconsideration.
Hope Johnson
Concord Resident
-----Original Message-----
From: Hope Johnson <[email protected]>
Sent: Wednesday, March 15, 2023 11:17 AM
To: Obringer, Carlyn <[email protected]>; City Clerk <[email protected]>; Aliano, Dominic <[email protected]>; Birsan, Edi <[email protected]>; Hoffmeister, Laura <[email protected]>; Nakamura, Laura <[email protected]>
Cc: Bjerke, Guy <[email protected]>; Barone, Valerie <[email protected]> Subject: follow up re CNWS developer selection process from 3/14/23 Council meeting
Dear Concord City Council:
This email is follow up on yesterday’s study session hearing on the RFQ process for the CNWS master developer selection.
How disappointing that only Councilmember Nakamura asked specifically how the process proposed by staff would allow council and the public to assess the feasibility of ideas proposed using only developer responses to questions. No matter how council or staff try to spin the end of negotiations with both Lennar and Seeno, both come down to lack of feasibility for the project.
Lennar could not (or maybe would not) feasibly make the numbers work to their satisfaction with the PLA the construction trades wanted. Seeno could not feasibly make the numbers work without adding 30% more housing units and reducing the percentage of promised affordable housing.
Issues with both Lennar and Seeno were based on failure to analyze draft numbers before signing agreements. The construction trades refused to listen to those of us who said if they didn’t get a PLA deal in writing from Lennar before the ENA was signed, they wouldn’t get it. And they didn’t. Council and staff did not require Seeno or its competing developers to provide draft term sheets with numbers to, at a bare minimum, show their narrative proposals were based in some reality of crunching numbers. And it wasn’t.
None of that would have happened if the developers had been required to present a draft set of numbers justifying their belief that what they were promising was likely to be financially feasible BEFORE signing agreements.
It's easy to ramble on about community benefits you want or universities you want or deals with electric car companies you want or PLAs you want. It’s easy to virtue signal about demanding 25% affordable housing. What council and staff refuse to acknowledgenow is that it is not so easy to crunch the numbers to make those things a reality.
There is no evidence your hybrid RFQ process shortened the selection time or led to an improved selection. You may have selected Seeno more quickly than you selected Lennar but your lack of looking at proposed financials upfront to support promised feasibility didn’t make anything happen quickly. You ended up having to continually extend time for Seeno to come up with numbers. And you had to use extra staff time to do it. It was just longer on the back end.
It is irresponsible and inconsiderate for council to continue down this path on this massive project. Draft term sheets with numbers demonstrating a basic financial plan to make the proposals work must be
demanded upfront with the responses. There is no other way for council or the public to assess the best developer to move forward into an ENA. There is no evdience your "quick" methods are successful. If the current Redevelopment Director cannot find a developer willing to present some draft financial plan in a response for a $6B project, then you need a new management team. I am certain we can find someone who can. And this massive project requires it.
Thank you to Councilmember Nakamura for being realistic about assessing feasibility from the start.
Nothing you want can happen without it. Anything less is irresponsible and merely heading toward the exact same failures this exact same group of people lead us to previously.
Regards,
Hope Johnson
Concord Resident
From: Thekeyisi <[email protected]>
Sent: Monday, April 17, 2023 11:33 AM
To: Reuse Project <[email protected]>
Subject: RE: Comment
It would be VERY helpful, if a candidate developer would put less emphasis on maximizing PROFITS.. and instead focused on building a sustainable neighborhood.
We ALL know that add-ons create more $'s than originally bid.
This MIGHT be a way to show the Country what can be done for developments going forward. IF Corps. are able to make SO much money that they create multi-millionaires out of the process.. then SURELY a lot of that money could be spent on the ACTUAL project. To make a sought after living space of quality.
WE need to get our priorities straight. NOT try to entice a developer to do the right thing.. Instead MANDATE.
Patricia Hatfield
Ryan Rd.
Concord
March 30, 2023
To:
Valerie Barone, City Manager
Guy Bjerke, Director, Economic Development and Base Reuse
Laura Hoffmeister, Mayor
Edi Birsan, Vice-Mayor
Carlyn Obringer, Councilmember
Laura Nakamura, Councilmember
Dominic Aliano, Councilmember
RE: Follow Up to Meeting on CNWS Process
Thank you to Valerie and Guy for meeting with us yesterday, we appreciate the opportunity to talk about the City’s process to restart development of the CNWS. To reiterate a few of our points in brief;
1. However the process moves forward and whoever the City’s development partner may be, there should be meaningful stakeholder engagement throughout. This should go above and beyond meetings informing stakeholders of decisions that have already been made, as this does not allow feedback to be incorporated before a plan is presented to Council. Without that necessary step, the City and those interested in the project are forced to either accept a deal that could be improved or halt the process altogether.
2. We believe there is more opportunity to work with and benefit from regional resources. While the Council has given direction on an RFQ, the decision to present only one option means there might have been other avenues that could have been considered more in depth. Specifically, MTC’s resources for project planning should be seriously considered. While that option may be useful in the future once a master developer is chosen, there have been opportunities for cooperation and funding that the City has let pass by. We do not think further such opportunities should come and go without at least some deliberation and greater transparency from the City as to why they have not pursued them. Furthermore, decision points presented to Council for how to develop the CNWS should include these prospects.
As promised, we have also attached our thoughts on the questions in Guy’s memo on the 14th.
Sincerely,
Aaron Tiedemann
Policy Manager
East Bay Housing Organizations.
Proposed Term Sheet Considerations to Be Discussed with Stakeholders
1. Should a Project Labor Agreement (PLA) continue to be required? If so:
a. Should a prospective master developer be required to negotiate and reach agreement on a Project Labor Agreement prior to LRA selecting a new master developer or should negotiation of a Project Labor Agreement be deferred until after master developer selection?
b. Should the LRA require that the terms of any Project Labor Agreement be disclosed to the City Council and public?
c. Rather than a public disclosure of the Project Labor Agreement, would a public disclosure by the prospective master developer summarizing the scope and potential financial impacts of the Project Labor Agreement be more appropriate? EBHO supports Council’s decision to require a PLA and release details of the PLA to the public. We also appreciate the Building & Construction Trades’ willingness to make that document publicly available.
2. Should the LRA express a willingness to consider changes to aspects of the Area Plan to enhance the financial feasibility of the project?
a. Is the LRA willing to increase the residential unit cap in the Area Plan? b. If the residential unit cap is increased, how should the Affordable Housing component be addressed to respond to the increase?
c. What is a realistic green frame (buffer) expectation north of Willow Pass Road? We would be supportive of changes to the project that ensure viability provided they do not compromise on previously promised community benefits and are made in a transparent way. Any choice to increase the number of units or make another substantive change should be made publicly rather than being decided without stakeholder input and presented as part of the final decision. On affordable units: the 25% requirement from the Area Plan means 25% of the total units in the project.
This means if there is an increase in total units, there should be a proportional increase in affordable units. Nothing else should need to change about these units—including their development profile. The size of the buffer needs to be realistic to let development pencil out.
3. Should the project’s first phase be guided by the market or should it, regardless of market conditions, be required to incorporate Transit Oriented Development near the North Concord BART Station? If yes to requiring incorporation of Transit Oriented Development in phase 1, are there parameters on what would be acceptable to the LRA? The framing of this question assumes there are not good economic reasons to locate the first phase of the project near North Concord BART. There is ample reason to think these units will be more desirable, allow more workers to easily access the commercial areas of the project, and be more viable in the market. Starting with the TOD portion also ensures affordable projects are competitive for funding (meaning starting elsewhere may mean these projects stall for lack of funds) and ensures the project is in compliance with the Homeless Collaborative LBA which requires units reserved for homeless households in Phase I are in a competitive location that is near amenities such as transit.
Prioritizing this area also serves the City and the State’s climate goals by ensuring that those working and living in the CNWS can access their homes and workplaces without relying on cars.
4. Should the community benefits proposed in the latest (CFP) Term Sheet (see Attachment 1 for a listing) not already discussed above be required in the future Term Sheet, subject to demonstration of financial feasibility?
Using the community benefits from the last term sheet unfairly influences the next developer and may result in the community getting less from the project because the starting point is already a compromise. The developer contribution towards community benefits in Attachment 1 prioritizes the sports facility over affordable housing. We are sensitive to the need for the project to pencil out, but firmly believe affordable housing funding should be a high priority.
5. Should the LRA require the master developer to provide quarterly reporting of litigation, threats to the company’s financial condition, and changes to company leadership? Should other topics be added to this required disclosure?
Yes, given that this project could take decades to complete, it is important that the City be assured of the developer’s stability and integrity throughout the project timeline.
6. Should the City continue to require that the Specific Plan and CEQA documents include the North Concord BART Station property?
Yes, as BART has indicated, their development of that site is largely dependent on the progress of the CNWS. As long as that is true, the City and master developer should work with BART to ensure both the TOD portion of the project and BART’s property are developed in tandem.
From: Judith Herman <[email protected]>
Sent: Tuesday, April 11, 2023 2:54 PM
To: City Clerk <[email protected]>
Subject: Item 9g
City Council,
I want to advocate for the inclusion of public access to the Project Labor Agreement as part of the RFQ. This will give the public further information on the developer’s willingness to treat workers with justice. I believe that this is an essential issue in choosing a master developer.
Judith Herman
Concord Resident
Benched Correspondence
Agenda Item No. 9g
April 11, 2023
From: Bjerke, Guy <[email protected]>
Sent: Friday, May 5, 2023 3:06 PM
To: Barone, Valerie <[email protected]>; Ezell, Justin <[email protected]>; Brown, Susanne <[email protected]>; Ortega, Jennifer <[email protected]>; Fockler, Joelle <[email protected]> Cc: McAuley, Wendy <[email protected]>; Mora, Israel <[email protected]>; Ryan, Joan <[email protected]> Subject: RE: Question about Labor Language in draft RFQ
*This email is being sent to all Councilmembers*
No. A sentence has been removed from Section 3.11 as repetitive. Instead, please see Section 5.2.4 – Question 7 where Respondents are asked to explain how they would comply with Section 3.11. We also invited Respondents to submit a PLA in Section 5.2.8 either as a public document or confidentially.
Council could modify the Section 3.11 and/or Section 5.2.8 to require a PLA with submission of the SOQ. Further, staff will ask Council on Tuesday night whether to add a sentence in Section 5.2.8 requiring the public disclosure of any PLA as part of Council consideration of the Term Sheet; which would occur after Master Developer selection.
Thank you for the question.
Guy Bjerke
Director, Economic Development & Base Reuse
City of Concord
[email protected]
(925) 671-3076
From: Obringer, Carlyn <[email protected]> Sent: Friday, May 05, 2023 2:50 PM
To: Bjerke, Guy <[email protected]>
Subject: Question about Labor Language in draft RFQ
Is the Construction Labor language in section 3.11 of the draft RFQ the same language that was in the prior RFQ?
Best Regards,
Carlyn
Carlyn Obringer
City Councilmember, District 2
City of Concord
Benched Correspondence
Agenda Item No. 10.a
May 9, 2023
From: Michael McDermott <[email protected]>
Sent: Friday, May 5, 2023 9:33 PM
To: City Clerk <[email protected]>; Hoffmeister, Laura <[email protected]>; Aliano, Dominic <[email protected]>; Nakamura, Laura <[email protected]>; Birsan, Edi <[email protected]>; Obringer, Carlyn <[email protected]>
Cc: Barone, Valerie <[email protected]>; Bjerke, Guy <[email protected]> Subject: 5/9 City Council Meeting CNWS development agenda item feedback
Concord City Council members and City Staff;
The third time is the charm, as they say! I hope this third attempt to select a master developer proves fruitful. I would like to offer some ideas that may help get us there:
Idea 1: Make the construction of a “clustered village” the cornerstone of the phase 1 development effort. Lower density housing is what people want, and it will sell quickly. Include all the amenities people want in a village: a walkable retail core, a nice neighborhood park, bike and pedestrian paths, and wide tree-lined roads connecting the village to BART and also to Clayton Road (where schools and “Old Concord” businesses can be accessed without overloading Willow Pass Road). Success breeds more success. A beautiful village development will attract regional interest and we will have long buyer waiting lists for homes in villages built in later phases!
Idea 2: also in Phase 1: Complete most of the infrastructure work in the higher density residential and commercial areas around North Concord. Cash flow from village housing sales can help fund infrastructure work to attract large development interest in the college campus, multi-story residential, retail, and high wage technical jobs.
Idea 3: Given the majority of the city council considers a PLA agreement necessary for the successful developer, formalize that as a requirement for the project. Do not make the mistake of informally requiring all the competing developers to have a PLA signed off before the final developer selection is made. Defer the PLA requirement until after the selection, so the trade unions do not have the unfair advantage of having developers compete against each other for a PLA. By waiting until after the developer is selected, both parties (developer and union) will be under equal pressure to achieve an acceptable negotiated outcome.
Hope these ideas are helpful!
Thanks!!!
Mike McDermott
Cell: 925-451-1072
[email protected]
Master Developer Selection
Process
GUY BJERKE, DIRECTOR OF ECONOMIC DEVELOPMENT
AND BASE REUSE
AGENDA ITEM 10 – M AY 9, 2023
1
Agenda
1. S taff Presentation
2. City Council Questions
3. Public Comment
4. Council Consideration
2
Staff Presentation
1. Background
2. Request for Qualifications (RFQ) Components
3. Selection Criteria
4. Selection Process/Timeline
5. Recommended Action
6. Questions
3
Background
• City Council Study
S
ession – March 14,
2023
• Interviews with
D
evelopers,
Stakeholders;
Community Input
• Ideas addressed in
S
taff Report and,
where appropriate,
included in RFQ
4
Interviews/Conversations by Topic
1. Project Labor Agreement / Disclosure?
◦ See Sections 3.11 Construction Labor & Section 5.2.8 – P roject Labor Agreement | Questions 7 and 8
◦ ? – P LA Required or Optional
◦ ? – B y when should PLA be submitted?
◦ ? – W hen should PLA be publically disclosed?
2. Changes to Area Plan? Impact to Affordable Housing?
◦ Questions 1 and 4
3. Phase 1 – W here to Start?
◦ Question 5
4. Term Sheet and Community Benefits?
◦ See Section 5.2.7 Comments on CFP Term Sheet
◦ ? – S hould comments be optional or required?
5
Interviews/Conversations by Topic
(continued)
5. Master Developer – R eporting and Disclosure
◦ See Section 5.2.5 Financial Capability and Required Disclosures and Appendix G – T
emplate ENA (Section 6)
6. Include North Concord BART Station in Specific Plan? ◦ Questions 1 and 5.
7. Other Topics – S ustainability
◦ See Section 3.14 Sustainability | Question 14
6
Request for Qualifications (RFQ)
Components
•Selection Approach – H ybrid RFQ
•City Expectations/Master Developer Responsibilities
(Section 3)
•Qualifications Requested (Sections 5.2.2, 5.2.3, 5.2.5) •Questions for Respondents (Section 5.2.4)
•Appendices (A through G)
7
Selection Criteria
•Demonstrated commitments to satisfy City’s priorities. •Financial capability and history of successful project financing •Respondent’s identified Internal Rate of Return threshold •Experience of Master Developer Team
•Organization of the Master Developer Team/Project Team •Experience of principle technical subconsultants
•Responses from financial references.
8
9 Selection Process/Timeline (Section 5.1)
Recommended Action
•Review the Master Developer Selection process
•Review the Request for Qualifications
•Take public comments
•Provide Council direction to staff if any changes are desired •Authorize the release of the Request for Qualifications Questions?
10
Staff Report
Date: May 9, 2023
To: City Council
From: Valerie J. Barone, City Manager
Prepared by: Justin Ezell, Assistant City Manager
[email protected]
(925) 671-3155
Subject: Announcing a Council Ad Hoc Committee comprised of Mayor Hoffmeister and Councilmember Obringer to advise the City Manager and staff on the development of Objective Design standards until they have been adopted by the City Council.
CEQA: Not a project/exempt pursuant to Public Resources Code Section 21065, CEQA Guidelines Sections 15060(c)(2), 15378, and/or 15061(b)(3).
Report in Brief
The State has limited a local jurisdiction’s ability to apply subjective design standards for qualifying housing projects, whereby the City of Concord can now only rely on the application of objective design standards. To address this limitation, Council has prioritized the development and adoption of Objective Design Standards to apply to qualifying housing projects. The Council Ad Hoc Committee will provide advice to the City Manager and staff on the development of the Objective Design Standards.
Recommended Action
The Mayor is appointing herself and Councilmember Obringer to serve on a Council Ad Hoc Committee to provide advisement to the City Manager and staff on development of Objective Design Standards until they have been adopted by the City Council.
Background
Ad Hoc Committees
Pursuant to City of Concord – City Council Meeting Procedures Section 4.53.d, the Mayor may, from time to time, announce appointments to ad hoc advisory committees composed solely of less than a majority of the members of the City Council; the
City Council Agenda Report
Agenda Item No.
May 9, 2023
announcement of such appointments shall appear on the posted agenda, but shall not require approval from a majority of the City Council.
The use of Ad Hoc committees is permitted under the Brown Act so long as they:
Serve a limited or single purpose that is not perpetual; Are comprised solely of less than a quorum of the City Council (for a five- member Council as in Concord, that means two Councilmembers); Have a defined purpose and timeframe to accomplish that purpose; Dissolve once the specific task is complete or the time has expired; and Are advisory.
An Ad Hoc committee is not subject to notice and posting requirements, nor to holding public meetings, if the above requirements are followed.
Analysis
The proposed Ad Hoc committee meets all the requirements of City Council meeting procedures Section 4.53.d.
A Council Ad Hoc Committee will provide advisement to the City Manager and staff on the development of Objective Design Standards. The Ad Hoc Committee will meet as necessary until the Objective Design Standards have been adopted by the City Council.
Financial Impact
Creation of the Ad Hoc Committee has no financial impact; however, matters discussed may result in City Manager actions or recommendations to the City Council that have a monetary effect.
Environmental Determination
Pursuant to Public Resources Code Section 21065, CEQA Guidelines Sections 15060(c), 15061(b)(3), 15262), and/or 15378, City Council action on this item is not subject to environmental review under the California Environmental Quality Act (CEQA) of 1970, as amended, because it will not result in a direct or reasonably foreseeable indirect physical change in the environment, and falls within the “common sense” exemption set forth in CEQA Guidelines Section 15061(b)(3), excluding projects where “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.”
Public Contact
The City Council Agenda was posted.