Concord City Council
September 19, 2023

1 COUNCILMEMBERS
Laura M. Hoffmeister, Mayor
Edi E. Birsan, Vice Mayor
Dominic D. Aliano
Laura M. Nakamura
Carlyn S. Obringer
Civic Center
1950 Parkside Drive
Concord, CA 94519
www.cityofconcord.org
Concord City Council/City
Council Sitting as the
Local Reuse Authority
Special Meeting
Tuesday,
September 19, 2023
6:00 p.m. - Open Session Council Chamber
1950 Parkside Drive
and/or Various
telephonic/electronic
locations
*IMPORTANT NOTICE ABOUT PUBLIC COMMENTS AND MEETING PARTICIPATION* Members of the public are invited to attend and participate at: Council Chamber, 1950 Parkside Drive, Concord, CA.

As a courtesy and technology permitting, members of the public may continue to provide live remote oral public comment via the City’s Zoom Platform. However, the City cannot guarantee that the public’s access to teleconferencing technology will be uninterrupted, and technical difficulties may occur from time to time. In those instances, so long as the public may still attend the meeting in person, the meeting will continue. Members of the public desiring to provide comments as a part of the meeting are encouraged to either submit written comments before 3:00 p.m. the day of the meeting or to attend the meeting in person.

Under California law, public comments at special meetings are limited to subjects on the agenda only.
2 HOW TO PARTICIPATE
The public is invited to participate in the City Council meeting using any of the following methods:

1. IN PERSON:
a.Members of the public can provide in-person comments in the Council Chamber.

Members of the public are encouraged, but not required, to fill out a speaker card. The Council Chamber will have seating available for members of the public to attend in person up to full seating capacity.

2. REMOTE:
a. Zoom:
https://cityofconcord.zoom.us/j/85886035703?pwd=XyRbOWqMJyff2mHPZ7W3BUMc9a Vanl.1 or Zoom Webinar ID: 858 8603 5703 and Passcode: 051015. b.Zoom Phone Numbers. Dial Toll Free: (669) 900-6833 or (346) 348-7799 or (253) 215- 8782.
c.During the meeting, each period for public comment will be announced, and participants may use the “Raise Hand” feature on Zoom to request to speak. If calling in via Zoom use *9 to raise and lower your hand. The meeting host will call on you, by name, and promote you to panelist in the webinar so you can be seen via your camera. Please enable your microphone when it is your turn to speak. In order to ensure the orderly administration of the meeting using this method, providing your name is encouraged, but is not required. (If you need instructions on how to use this feature, please contact the City Clerk before 3:00 p.m. the day of the meeting at [email protected]).

3. EMAIL:
a.Public comments can also be submitted via email to [email protected]. Please note that emailed comments will not be read aloud by staff. Any public comments received up until 3:00 p.m. the day of the meeting will be:

1. distributed to the Council before the meeting,

2. posted online for public inspection at
https://stream.ci.concord.ca.us/OnBaseAgendaOnline/Meetings/Search, and

3. inserted into the meeting record.
b.As emails containing public meeting comments are part of the official record, note that personal contact information may be published if it is included with your email.

4. TO WATCH OR LISTEN ONLY:
a.Watch on TV on Comcast Channel 28, Astound/Wave Channel 1026, and AT&T U-verse Channel 99
b.Watch the TV broadcast through the City’s website by following THIS LINK c.Watching Live Streaming of the meeting by following THIS LINK d.Join the Zoom webinar by following THIS LINK
3 OPEN SESSION

1. OPENING
Roll Call – Announcements/Consideration and Approval of Requests by Councilmembers to Participate Remotely Pursuant to AB 2449 Pledge of Allegiance – Vice Mayor Birsan

2. CITY COUNCIL/LOCAL REUSE AUTHORITY (LRA) CONSIDERATION ITEM The public is entitled to address the City Council/LRA on items appearing on the agenda before or during the City Council’s/LRA’s consideration of that item. Each speaker will be limited to approximately three minutes. Please see “How to Participate” above. a. Considering – adoption of a Resolution approving an Exclusive Agreement to Negotiate (ENA) between the Local Reuse Authority (LRA) and BCUS Acquisitions LLC (Brookfield Properties) regarding the disposition and development of approximately 2,350 acres of the inland area of the former Concord Naval Weapons Station; and authorizing the City Manager to execute the ENA in a form acceptable to the City Attorney. Report by Guy Bjerke, Director of Economic Development and Base Reuse.

CEQA: Not a protect/exempt pursuant to Public Resources Code Section 21065, CEQA Guidelines Sections 15060(c)(2) 15378 and/or 15061(b)(3).

3. ADJOURNMENT
Next Meeting: Regular Meeting - Cancelled
Date: 9/26/2023 6:30 PM

NOTICE TO THE PUBLIC
There is a 90-day limit for the filing of a challenge in the Superior Court to certain City administrative decisions and orders which require a hearing by law, the receipt of evidence, and the exercise of discretion. The 90-day limit begins on the date the decision is final (Code of Civil Procedure §1094.6). Further, if you challenge an action taken by the City Council in court, you may be limited by California law to raising only those issues you or someone else raised in the hearing or in a written correspondence delivered to the City Council prior to or at the hearing.

In accordance with the Americans with Disabilities Act and California Law, it is the policy of the City of Concord to offer its public programs, services and meetings in a manner that is readily accessible to everyone, including those with disabilities. If you are disabled and require a copy of a public hearing notice, or an agenda and/or agenda packet in an appropriate alternative format; or if you require other accommodation, please contact the ADA Coordinator Tianjun Cao at (925) 671-3243 or [email protected], at least 24 hours in advance of the meeting. Advance notification within this guideline will enable the City to make reasonable arrangements to ensure accessibility.

Staff Report
Date: September 19, 2023
To: City Council/City Council Sitting as the Local Reuse Authority From: Valerie J. Barone, City Manager
Prepared by: Guy Bjerke, Director – Economic Development & Base Reuse [email protected]
(925) 671-3076
Subject: Considering adoption of a Resolution approving an Exclusive Agreement to Negotiate (ENA) between the Local Reuse
Authority (LRA) and BCUS Acquisitions LLC (Brookfield
Properties) regarding the disposition and development of approximately 2,350 acres of the inland area of the former Concord Naval Weapons Station; and authorizing the City Manager to execute the ENA in a form acceptable to the City Attorney.

CEQA: Not a protect/exempt pursuant to Public Resources Code Section 21065, CEQA Guidelines Sections 15060(c)(2) 15378 and/or 15061(b)(3).

Report in Brief
On August 26, 2023, the Concord City Council, sitting as the Local Reuse Authority (“LRA” or, for convenience, “City”), directed staff to negotiate an Exclusive Agreement to Negotiate (ENA) with Brookfield Properties (Brookfield) regarding the development of the Community Reuse Project at the former Concord Naval Weapons Station.

Brookfield is using BCUS Acquisitions LLC as their acquiring entity.

The attached ENA (Exhibit A to Attachment 1) provides the terms and timeframes under which both Brookfield and the LRA will pursue the implementation of the Community Reuse Project until the future adoption of a Disposition & Development Agreement (DDA).

The primary components of the ENA include:

2.a2.a2.a2.a2.a2.a2.a2.a

City Council Agenda Report
Agenda Item No. 2.a
September 19, 2023

1. A Preliminary Stage negotiation period of 120 days to allow Brookfield to prepare and propose a Term Sheet to the LRA.

2. A Disposition & Development Agreement (DDA) Stage negotiation period of twenty-four (24) months to complete a Specific Plan, Environmental Analysis, and a Disposition & Development Agreement.

3. An agreement by Brookfield to reimburse City costs associated with the Reuse Project as it moves forward.

4. A Restriction on Brookfield from making campaign contributions or soliciting campaign contributions from others to candidates for City office or Councilmembers seeking other offices, or political action committees supporting or opposing those candidates during the term of the ENA.

5. A list of Preliminary Stage negotiation matters for consideration in the Term Sheet, Exhibit B to the ENA.

Recommended Action
Review the proposed Resolution and ENA take public comment; provide direction to staff if Council desires any changes to the Resolution or ENA; adopt the Resolution (which includes approval of the ENA); and authorize the City Manager to execute the ENA in a form acceptable to the City Attorney.

Background
The LRA issued a Request for Qualifications to the development community on May 15, 2023, including known interested parties and the list of Surplus Land Act1 interested developers from the California Department of Housing and Community Development (HCD) including HCD itself. The LRA received Statements of Qualifications (SOQs) from two Master Developer Teams by the July 14, 2023 deadline. Housing America Partners withdrew their SOQ on August 14, 2023.

On August 26, 2023, the LRA heard a presentation from Brookfield; reviewed the staff report, Brookfield’s SOQ, and the LRA Team’s2 Summary Table of the submitted SOQs; received public comment; and directed staff to enter into Exclusive Agreement to Negotiate discussions with Brookfield.

Staff has reached agreement with Brookfield on the proposed ENA and is bringing it forward at this meeting for LRA consideration.
1 The Surplus Land Act – [Government Code, Title 5, Division 2, Part 1, Chapter 5, Article 8. Surplus Lands] seeks to promote affordable housing development on unused or underutilized public land throughout the state. 2 LRA Team: Guy Bjerke, Director-Economic Development & Base Reuse; Joan Ryan – Community Reuse Planner; Paul Silvern – HR&A Advisors; Tom Jirovsky and Mary Smitheram-Sheldon – ALH Economics; Suzanne Schwab – Placeworks; Jerry Ramiza – Burke, Williams & Sorenson; Alexandra Barnhill – Jarvis, Fay & Gibson

City Council Agenda Report
Agenda Item No. 2.a
September 19, 2023
Analysis
The proposed Exclusive Agreement to Negotiate is between the City/LRA and BCUS Acquisitions LLC (Brookfield.)
Exclusive Agreement to Negotiate (Exhibit A to Attachment 1) The proposed ENA is substantially consistent with the template ENA found in the Request for Qualifications. In certain instances, through mutual agreement, the wording in the proposed ENA is different from that found in the template ENA to clarify meaning.

Key Components of the ENA include the following:

1. As outlined in the Request for Qualifications, Brookfield is being offered the rights to the entire Economic Development Conveyance of approximately 2,350 acres subject to the terms of the ENA and subsequent agreements. (See ENA Recital D)

2. The Negotiating Period consists of two stages:
a. A Preliminary Stage of 120 days to prepare a Term Sheet addressing the matters described in Exhibit B and other matters agreed upon by the parties. (See Section 3.1)
b. A Disposition and Development Agreement (DDA) Stage of 24 months from Term Sheet acceptance to complete a Specific Plan, Environmental Analysis, and a Disposition & Development Agreement. During this same time-period, the LRA will work to complete the Economic Development Conveyance agreement with the U.S. Navy for the transfer of the property to the LRA. (See Section 3.2)
c. Both negotiation stages allow for the granting of administrative extensions at the discretion of the LRA. (See Section 3.3)

3. Brookfield agrees to provide in the Preliminary Stage an initial deposit of $250,000 to reimburse the city for the costs of negotiating the ENA and Term Sheet; including an analysis of their financial ability to complete the project. (See Section 6.1)

4. The ENA obligates Brookfield to reimburse the City/LRA’s costs related to the review and processing of the Specific Plan, Environmental Impact Report, DDA, and other project costs in their entirety, including staff, consulting team, and regulatory oversight costs through a future, administrative reimbursement agreement. (See Section 6.2)

5. A prohibition of disparaging statements from key individuals at Brookfield and a definition of what is and what is not a disparaging statement. (See Section 12)

6. A prohibition against the making of campaign contributions or the solicitation of campaign contributions from others by key individuals at Brookfield to candidates for City office or Councilmembers seeking other offices, or political action

City Council Agenda Report
Agenda Item No. 2.a
September 19, 2023
committees supporting or opposing those candidates during the term of the ENA. (See Section 13)

7. The list of Preliminary Stage Negotiation Matters to be discussed for possible inclusion the Term Sheet. (See ENA Exhibit B)
a. Exhibit B provides for the ability to discuss a potential Term Sheet provision to protect Brookfield’s investment in the Project should the LRA approve the Specific Plan and Environmental Impact Report, but fail to approve the proposed DDA as negotiated by the City and Developer’s negotiating teams. (See last bullet in ENA Exhibit B)
b. The last bullet in ENA Exhibit B also provides for the discussion of “any other issues that the Parties mutually agree to negotiate.” Resolution – Surplus Land Act findings
The proposed resolution (Attachment 1) adopting the ENA includes, among other things, findings that address the Surplus Land Act (SLA).

In Section 3, the City Council finds that the SLA contravenes Base Realignment and Closure Act (BRAC) requirements and is preempted by BRAC.

In Section 4, the City Council finds that, even if the SLA were not preempted by BRAC, the property subject to the ENA is “exempt surplus land” as defined by the SLA based on the LRA’s adherence to required RFQ procedures and the project’s commitment to the provision of affordable housing.

Financial Impact
Funding for the Master Developer Selection process is coming from the existing project budget. The Reuse Project budget consists of reserves from previous City loans to the Local Reuse Authority and the $530,000 loan made this past June when the current City budget was adopted. Once a Master Developer is selected by approving the ENA, future Reuse Project and Local Reuse Authority funding will be provided by the Master Developer as negotiated in the Exclusive Agreement to Negotiate and Term Sheet.

Environmental Determination
Approval of the Exclusive Agreement to Negotiate does not commit the City to a definite course of action with respect to the subject property, and this activity does not constitute a “project” within the meaning of Public Resources Code Section 21065 and/or the California Environmental Quality Act (CEQA) Guidelines Section 15060(c)(2) and CEQA Guidelines Section 15378. Even if this activity is a project for CEQA analysis, it falls within the “Common Sense” CEQA exemption set forth in CEQA Guidelines Section 15061(b)(3) 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, the activity is not subject to CEQA. No unusual circumstances exist and none of the exceptions under CEQA Guidelines Section 15300.2 apply. This determination reflects the City’s

City Council Agenda Report
Agenda Item No. 2.a
September 19, 2023
independent judgment and analysis. Appropriate CEQA analysis will occur in connection with formal negotiations for the Disposition and Development Agreement for the Reuse Project property.

Public Contact
The City Council Agenda was posted. The staff report, resolution and ENA will be available to the City Council/LRA and the public on September 14, 2023. Notification of this meeting and the availability of documents will be sent out to the Reuse Project’s interested parties list on September 14, 2023.

Attachments

1. Resolution Approving Brookfield Exclusive Agreement to Negotiate with Exhibit A to Attachment 1: Exclusive Agreement to Negotiate

Res No. 23-XX 1

BEFORE THE CITY COUNCIL SITTING AS THE CONCORD LOCAL REUSE

AUTHORITY OF THE COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA RESOLUTION NO. 23-XX

A RESOLUTION APPROVING AN EXCLUSIVE AGREEMENT (ENA) TO NEGOTIATE

BETWEEN THE LOCAL REUSE AUTHORITY (LRA) AND BCUS ACQUISITIONS LLC (BROOKFIELD) REGARDING THE DISPOSITION AND DEVELOPMENT OF APPROXIMATELY 2,350 ACRES OF THE INLAND AREA OF THE FORMER CONCORD NAVAL WEAPONS STATION; AND AUTHORIZING THE CITY MANAGER TO

EXECUTE THE ENA IN A FORM ACCEPTABLE TO THE CITY ATTORNEY WHEREAS, 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; and
WHEREAS, the City acting in its capacity as the Local Reuse Authority (“LRA”) 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”); and
WHEREAS, the CRP Area Plan provides that (i) 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; (ii) 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”); and (iii) 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 the federal Base Realignment and Closure Act (P.L. 101-510), as amended (“BRAC”); and
WHEREAS, the Development Footprint is proposed to be transferred to the City, as LRA, pursuant to BRAC’s economic development conveyance transfer mechanism because of the extensive job generation on the former installation; and
WHEREAS, BRAC requires LRAs to prepare a Reuse Plan and Homeless Assistance Submission to explain the proposed reuses of the military installation and how the Reuse Plan would achieve a balance in responding to the community’s economic development needs, and the needs of Attachment 1

Res No. 23-XX 2
the homeless; and
WHEREAS, federal regulations specifically require the Navy to consider a list of specified factors in determining whether to approve an economic development conveyance, including the “[e]xtent of short- and long-term job generation,” the “[f]inancial feasibility of the development and proposed consideration, including financial and market analysis and the need and extent of proposed infrastructure and other investments” and “[c]urrent local and regional real estate market conditions, including market demand for the property”; and
WHEREAS, as required by BRAC, the City, as LRA, prepared a Reuse Plan, a regional homeless needs assessment and conducted extensive outreach to solicit interest from homeless housing and service providers to satisfy the homeless needs which identified a need for multifamily transitional housing and job training; and
WHEREAS, consistent with federal regulations, the City advertised the availability of surplus buildings and properties to state and local eligible parties, including homeless assistance providers, conducted a public workshop, and directed outreach to homeless assistance providers to define how those needs could be met; and
WHEREAS, compliance with BRAC was brought to closure through City’s development of legally binding agreements approved by the US Department of Housing and Development (HUD) with affordable housing providers in a collaborative (Contra Costa County Continuum of Care) and the Contra Costa/Solano Food Bank for dedication of certain land within the CRP Area for multifamily homeless housing and a food bank/warehouse training facility; and WHEREAS, in 2019 the State of California enacted AB 1486 amending the State Surplus Land Act (Government Code section 54220 et seq.) (“SLA”) to require, in part, that, except where property is considered “exempt surplus land,” a local agency, including a city, disposing of real property not needed for certain narrowly defined agency uses, must first offer the property for sale to housing sponsors, school districts and parks districts for affordable housing, educational purposes or parks purposes, as applicable; and
WHEREAS, SLA Section 54221(f)(1)(F)(ii) states that “exempt surplus land” includes “[s]urplus land that is put out to open, competitive bid by a local agency, provided all entities

Res No. 23-XX 3
identified in subdivision (a) of Section 54222 will be invited to participate in the competitive bid process, for. . . [a] mixed-use development that is more than one acre in area, that includes not less than 300 housing units, and that restricts at least 25 percent of the residential units to lower income households . . .with an affordable sales price or an affordable rent . . .for a minimum of 55 years for rental housing and 45 years for ownership housing”; and WHEREAS, the City’s commitment to the affordable housing goals embodied by AB 1486 is evidenced by the fact that City, since it first approved the CRP Area Plan in 2012, has been committed to a goal that 25% of all residential dwelling units developed on the Development Footprint be made available to lower-income households as defined in Section 50079.5 of the Health and Safety Code at an affordable rent or affordable housing cost as defined in Sections 50052.5 and 50053 of the Health and Safety Code; and
WHEREAS, on May 15, 2023, City issued a Request for Master Developer Qualifications 2023 (“RFQ”) for development of the Development Footprint which notified prospective developers that City was seeking a master developer who could commit to support delivery of at least 25% of the total number of residential units as affordable units available to lower income households; and WHEREAS, City voluntarily provided notices of availability and issuance of the RFQ to the State Department of Housing and Community Development and all entities identified in Section 54222(a) of the SLA; and
WHEREAS, the RFQ incorporated findings that: (1) with respect to economic development conveyances, the SLA is preempted by the comprehensive and detailed scheme for transfer, disposition and development of former military base property set forth in BRAC, and (2) even if the SLA were deemed not to be preempted and therefore applicable to the City’s disposition of the Development Footprint, the City’s affordable housing requirements for the Development Footprint as described in the RFQ, meet the requirements for the Development Footprint to be considered “exempt surplus land” under SLA section 54221(f)(1)(F)(ii); and WHEREAS, during the 60-day period the RFQ was available to prospective master developers, including affordable housing sponsors identified in Section 54222(a) of the SLA, the City received no notices of interest from housing sponsors or other preferred purchasers under the SLA, but

Res No. 23-XX 4
did receive statements of qualifications from two prospective master developer candidates: Brookfield Properties / BCUS LLC (“Brookfield” or “Developer”) and Housing America Partners (the latter later withdrew itself from consideration); and
WHEREAS, on August 26, 2023, the Local Reuse Authority, based on the statements of qualifications submitted in response to the RFQ, selected Brookfield to potentially become the master developer of a proposed development project to include a mix of residential, commercial, and public uses substantially consistent with the approved CRP Area Plan (“Project”) on the Development Footprint; and
WHEREAS, City and Developer desire to enter into an Exclusive Agreement to Negotiate (“ENA”; attached hereto as Exhibit A) setting forth the terms under which the parties will negotiate a detailed term sheet with respect to the proposed Project (“Term Sheet”) which, if negotiations are successful, will be presented to the Local Reuse Authority for approval; and WHEREAS, if the Local Reuse Authority approves the Term Sheet, the ENA establishes procedures and standards for the negotiation and drafting of a comprehensive proposed 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; and
WHEREAS, the staff report accompanying this Resolution provides additional information about the potential Project and a copy of the proposed ENA; and WHEREAS, the Local Reuse Authority intends and understands that in entering into the ENA the City is not committing to grant any land use approvals for the Project or to approve any further agreement with the Developer; and
WHEREAS, the Local Reuse Authority, after giving all public notices required by State Law and the Concord Municipal Code, held a duly noticed public meeting on September 19, 2023 and at such public meeting, they considered all pertinent oral and written information, exhibits, testimony, and comments received during the public review process, including, without limitation, information

Res No. 23-XX 5
received at the public hearing, the oral report from City staff, the written report from City staff dated September 19, 2023, this Resolution, and all other information on which the Local Reuse Authority has based its decision (collectively, “LRA Information”).

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CONCORD SITTING AS THE LOCAL REUSE AUTHORITY DOES RESOLVE AS FOLLOWS:

Section 1. Approval of the Exclusive Agreement to Negotiate does not commit the City to a definite course of action with respect to the subject property, and this activity does not constitute a “project” within the meaning of Public Resources Code Section 21065 and/or the California Environmental Quality Act (CEQA) Guidelines Section 15060(c)(2) and CEQA Guidelines Section 15378. Even if this activity is a project for CEQA analysis, it falls within the “Common Sense” CEQA exemption set forth in CEQA Guidelines Section 15061(b)(3) 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, the activity is not subject to CEQA. No unusual circumstances exist and none of the exceptions under CEQA Guidelines Section 15300.2 apply. This determination reflects the City’s independent judgment and analysis. Appropriate CEQA analysis will occur in connection with formal negotiations for the Disposition and Development Agreement for the Reuse Project property.

Section 2. The Local Reuse Authority hereby finds and determines that the foregoing recitals are true and correct; the recitals are hereby incorporated by reference into each of the findings as though fully set forth therein. The recitals constitute findings in this matter, and together with the LRA Information, serve as an adequate and appropriate evidentiary basis for the findings and actions set forth herein. Any exhibits attached to this Resolution are incorporated herein by reference.

Section 3. The Local Reuse Authority hereby finds that the 2019 amendments to the SLA implemented by AB 1486 directly contravene BRAC requirements by, among other things, (a) excluding from the definition of “agency’s use” any development for “commercial or industrial uses or activities, including nongovernmental retail, entertainment, or office development” or dispositions for “the sole purpose of investment or generation of revenue”; and (b) requiring disgorgement of a percent of the gross sale price if the disposing agency fails to comply with the SLA which is in direct conflict with BRAC provisions requiring all proceeds obtained from the sale or use of former base

Res No. 23-XX 6
property to either be paid to the federal government as consideration for the economic development conveyance or used for specified listed purposes to support economic redevelopment of the former base for at least seven years under threat of recoupment from the federal government and, therefore, the SLA, as amended by AB 1486, is preempted by BRAC.

Section 4. The Local Reuse Authority hereby further finds that even if the SLA were not preempted by BRAC and, therefore, deemed applicable to City’s proposed disposition of the Development Footprint, the Development Footprint property subject to the ENA is “exempt surplus land” as defined in Section 54221(f)(1)(F)(ii) because (a) the development opportunity was put out to open, competitive bid by the City via issuance of the RFQ, (b) all entities identified in SLA Section 54222(a) were invited by City to participate in the competitive bid process, and (c) the development opportunity described in the RFQ is for a mixed-use development that is more than one acre in area, includes more than 300 housing units, and will restrict at least 25 percent of the residential units to lower income households with an affordable sales price or an affordable rent for a minimum of 55 years for rental housing and 45 years for ownership housing.

Section 5. The Local Reuse Authority hereby approves the ENA and authorizes the City Manager to execute the ENA on behalf of the City in substantially the form submitted to the Local Reuse Authority in connection with the consideration of this Resolution, subject to such minor changes as the City Manager and City Attorney may approve, in a form acceptable to the City Attorney provided, however, that nothing in this Resolution, the preparation of the ENA or the conduct of the negotiations pursuant to the ENA shall be deemed to commit the City to approve any land use approvals for the Project or to approve any further agreement with the Developer.

Section 6. The Local Reuse Authority authorizes and directs the City Manager and her designees to take such steps as are reasonable and necessary to performance of the City's obligations under the ENA and to carry out the terms and conditions of the ENA Section 7. This resolution shall become effective immediately upon its passage and adoption. //
//
//

Res No. 23-XX 7
PASSED AND ADOPTED by the City of Concord Local Reuse Authority on September 19, 2023, by the following vote:

AYES: Authoritymembers -
NOES: Authoritymembers -
ABSTAIN: Authoritymembers -
ABSENT: Authoritymembers –
I HEREBY CERTIFY that the foregoing Resolution No. 23-XX was duly and regularly adopted at a regular meeting of the City of Concord Local Reuse Authority on September 19, 2023.

Joelle Fockler, MMC, Secretary
Local Reuse Authority
APPROVED AS TO FORM:

Susanne Meyer Brown
Local Reuse Authority Counsel
Attachment: Exhibit A – Exclusive Agreement to Negotiate

EXCLUSIVE AGREEMENT TO NEGOTIATE
by and between

CITY OF CONCORD
(“City”)
and

BCUS ACQUISITIONS LLC
(“Developer”)
Dated ___________________, 2023
Exhibit A to Attachment 1

TABLE OF CONTENTS

Page
i

4887-6694-5398 v7

1. Incorporation of Recitals......................................................................................................2

2. Exclusive Negotiations ........................................................................................................2

3. Negotiating Period ...............................................................................................................2

3.1 Preliminary Stage .....................................................................................................2

3.2 DDA Stage ...............................................................................................................2

3.3 Extensions ................................................................................................................3

4. Exclusivity of Negotiations..................................................................................................3

5. Project Implementation ........................................................................................................4

6. Reimbursement of City Costs ..............................................................................................4

6.1 Preliminary Stage .....................................................................................................4

6.2 DDA Stage; Reimbursement Agreement .................................................................5

7. Developer’s Representations and Warranties ......................................................................5

7.1 Authority ..................................................................................................................5

7.2 No Conflict...............................................................................................................5

7.3 Litigation or Other Proceedings ...............................................................................5

7.4 Financial Statements; No Material Change in Financial Condition ........................5

7.5 No Developer Bankruptcy .......................................................................................5

8. Progress Reports and Information .......................................................................................6

9. Limitations on Effect of Agreement ....................................................................................6

10. Defaults and Remedies ........................................................................................................7

10.1 Default......................................................................................................................7

10.2 Exclusive Remedies for City Default ......................................................................7

10.3 Exclusive Remedies for Developer Default .............................................................7

10.4 No Damages .............................................................................................................7

10.5 Default under Reimbursement Agreement ..............................................................8

11. Rights to and Delivery of Third-Party Materials .................................................................8

12. Non-Disparagement .............................................................................................................9

12.1 Disparaging Statement .............................................................................................9

12.2 Notice and Demand to Meet and Confer .................................................................9

12.3 Mediation .................................................................................................................9

12.4 Liquidated Damages ................................................................................................9

TABLE OF CONTENTS
(continued)
P a g e

ii

4887-6694-5398 v7

12.5 Developer’s Rights to Object .................................................................................10

12.6 Developer Restricted Individuals ...........................................................................10

13. Campaign Contributions ....................................................................................................10

13.1 Campaign Contribution Restrictions......................................................................10

13.2 City Remedies ........................................................................................................10

13.3 AB 1439 .................................................................................................................11

14. Rights Following Expiration or Termination .....................................................................11

15. Right to Enter the Development Footprint/City Property Documents...............................11

16. Notices ...............................................................................................................................11

17. Confidentiality of Information ...........................................................................................13

18. No Commissions ................................................................................................................14

19. Assignment ........................................................................................................................15

20. Applicable Law; Venue .....................................................................................................15

21. Severability ........................................................................................................................15

22. Integration ..........................................................................................................................15

23. Modifications .....................................................................................................................15

24. Waiver of Lis Pendens .......................................................................................................15

25. Interpretation ......................................................................................................................16

26. Authority ............................................................................................................................16

27. Next Business Day .............................................................................................................16

28. Joint and Several ................................................................................................................16

29. Counterparts .......................................................................................................................16

30. List of Exhibits ...................................................................................................................17

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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 BCUS ACQUISITIONS LLC, a Delaware limited liability company (“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 Na vy’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 t he 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 designate d 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 th e CRP Area will be set aside as a regional park for habitat conservation/restor ation, open space, and passive recreation (“Regional Park” ) pursuant to a public benefit conveyance from the United State s 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 us es, including, potentially, a first responder training fac ility (“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 Nav y 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 co mpleted a FOST for an initial transfer of 1,304 acres of the Development Footprint. The CRP A rea, the Regional Park, and the Development Footprint are each depicted on the Site Map attached hereto as Exhibit A.

C. C i t y i s s u e d a R e q u e s t f o r Q u a l i f i c a t i o n s (“RFQ”) for development of the Development Footprint on May 15, 2023. On August 26, 2023 ( “Selection Date” ), the City Council, based on the statements of qualifications subm itted in res ponse 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 wi th 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 als o establishes procedures and standards for the negotiation and drafting of a comprehensive proposed Disposition and

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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 m ultiple phased closings, and Developer’s implementation, either itself or in cooperation wit h one or more vertical developers, of the Project.

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 i n such recitals and in the introductory paragraph preceding the recitals, are hereby incor porated 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 dil igently negotiate the terms of a mutually satisfactory DDA, including a form of statutory Develo pment 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 mu ltiple 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. Durin g 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.

3.2 DDA Stage.
(a) If, and only if, prior to expiration of the Preliminary Stage, as may be extended pursuant to Section 3.3 below, the Parties reach agree ment on a mutually acceptable Term Sheet and Reimbursement Agreement (as defined in Section 6 . 2 b e l o w ) , s u c h Reimbursement Agreement has been executed by the Developer prio r t o t h e C i t y C o u n c i l ’ s consideration of the Term Sheet, and the City Council approves the Term Sheet, the Parties shall

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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) month s 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 b y City. If a DDA has not been executed by City and Developer by the expiration of the DDA Sta ge, then this Agreement shall terminate and neither Party shall have any further rights or ob ligations under this Agreement, except as set forth herein.
(b) If the Parties reach agreement on a mutually acceptable Term Sh eet 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 first deposit under the Reimbursement Agreement (defined in Section 6.2 below ), in which case neither Party shall have any further rights or obligations under this Agreeme nt, 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 an add itional one hundred fifty (150) calendar days (for a maximum total of two hundred forty (270) calendar days for the Preliminary Stage) 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. The DDA Stage may be extended one or more times for a period not to exceed an additional ninety (90) calendar days by the City Manager or designee if such official determines in their sole discretion that such an extension is necessary to address delays related to CEQA compliance or negotiations with the Navy. In addition, 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 extensio ns, 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 exclusi vely with Developer regarding implementation of the Project. Notwithstanding the ab ove, during the entirety of the Negotiating Period, this Agreement does not prevent City from p roviding information regarding the Project or implementation thereof (other than Developer’s Confidential Information as defined in Section 17 below) to persons or entities other than Developer or engaging in negotiations with other public entities, including the Navy, San Francisco Bay Ar ea 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.

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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. Reimbursement of City Costs.

6.1 Preliminary Stage. Developer has, prior to or concurrent with the execution of this Agreement by City, provided to City a cash deposit in the amount of Two Hundred Fifty Thousand Dollars ($250,000) (“Deposit”). City is entitled to draw against the Deposit and apply such draws to pay all City Costs (defined below) incurred between the Sele ction Date and the Effective Date and during the Preliminary Stage of the Negotiating Period. Wit hin ten (10) days of the Effective Date, City shall provide Developer with a report itemizing all City Costs incurred through the Effective Date and a “time and materials” rate sheet for all Ci ty staff working on the Project.

Thereafter, City shall provide Developer with monthly invoices for City Costs. Such invoices must provide sufficient detail from which Developer may confirm who performed the services, the nature of the work performed, the hours worked, the developer r eimbursable rates charged to the City, and that the services performed are properly included wit hin City Costs. Developer acknowledges that the information shown on the outside legal counsel invoices w ill be general in nature, shall include only a high level summary of time spent and amount payable for each billing period, and shall not include details that may be included in b illing statements provided to City, which the Parties acknowledge are attorney-client privileged. I f the City Council approves the Term Sheet, the remaining balance of the Deposit, if any, will be retained by City and credited towards Developer’s obligation to provide the initial deposit under the Reimbursement Agreement (as defined in Section 6.2 below). If the Parties are unable to reach agreement on a mutually acceptable Term Sheet or if City Council does not approve the Term Sheet, the remaining Deposit funds, if any, shall be retained by City for six (6) months fol lowing expiration of the Preliminary Stage to secure performance of Developer’s obligations under Section 17 below. Within thirty (30) days following expiration of said 6-month period and confirmation that Developer is not in breach of its obligations under Section 17, the unexpended and uncommitted portion of the Deposit, if any, shall be refunded by City to Developer. As used in this Agreement, “City Costs” means and includes all internal and third party expenses incurred by City between the Selection Date and the Effective Date in connection with the negotiation and drafting of this Agreement and during the Preliminary Stage in connection with the negotiation and drafting of the Term Sheet, including but not limited to expenses of City/LRA staff, financial consultants, attorneys, planners, and engineers retained to negotiate and draft this Agreement and the Term Sheet, and prepare analyses regarding the timing and Developer’s financial ability to complete the Project, all related solely to the Project.

City may not impose any “upcharge” or “overhead” fee or charge on the rates payable under any outside vendor- or third party consultant-related contracts for City Costs. City’s obligations under this Section 6.1 shall survive the expiration or termination of this Agreement.

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6.2 DDA Stage; Reimbursement Agreement. Prior to the expiration of the Preliminary Stage and as a condition precedent to commencement of the DDA Stage, the Parties shall mutually agree upon and execute an administratively approved reimbursement agreement (“Reimbursement Agreement ”) to provide a mechanism for Developer to pay all costs to be incurred by City in connection with the Project from the commen cement of the DDA Stage and continuing through full implementation of the DDA and any anc illary agreements, including without limitation, any statutory Development Agreement. The Re imbursement Agreement will include, among other things, an opportunity for Developer to review and comment upon scopes of work and associated budgets for such outside vendors and third party consultants. The Reimbursement Agreement must be signed by Developer prior to consideration of the Term Sheet by the City Council.

7. Developer’s Representations and Warranties.

Developer represents and warrants to City as follows:

7.1 Authority. Developer is a limited liability company duly organ ized in the State of Delaware 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 p erformance of the obligations of Developer hereunder have been duly authorized by all requisite company actions on the part of Developer.

7.2 No Conflict. Developer’s execution, delivery and performance o f its obligations under this Agreement will not cons titute 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.

7.3 Litigation or Other Proceedings. The litigation disclosures previously provided by Developer to City in connection with Developer’s Statement of Q ualifications (“SOQ”) response to the RFQ are true and complete in all material respects. As of the Effective Date, 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.

7.4 Financial Statements; No Material Change in Financial Condition . The financial statements previously submitted by Developer to City in c onnection with Developer’s SOQ submittal are true and accurate in all material respects. As of the Effective Date, to Developer’s knowledge, there have been no material changes in Developer’s f inancial condition from the financial condition as reflected in the financial statements previously submitted by Developer.

7.5 No Developer Bankruptcy. As of the Effective Date, neither Deve loper nor Developer’s manager or managing member, as applicable, is the s ubject 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 respective

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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 s eizure 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 7 untrue or misleading.

8. 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 sha ll 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 incurr ed 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 Footpri nt reasonably available to City, including all non-privileged information concerning the CRP Area, CRP Area Plan, the timing of Navy FOST determinations and conveyances, and the physical cond ition 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 de velopers. 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 t o be confidential or proprietary developer information.

9. Limitations on Effect of Agreement.

This Agreement (and any extension of the Negotiating Period) do es 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 comm itting 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 p ortion thereof. Execution of this Agreement by City and Developer is merely an agreement to condu ct a period of diligent, good faith negotiations in accordance with the terms hereof, reservi ng 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 authorize d representatives of City and Developer. Until and unless a DDA is signed by Developer, approved by the City C ouncil, 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 a ny oral or implied agreement by either Party to enter into any other legally binding agreement.

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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 coordi n a t e w i t h D e v e l o p e r t h e scheduling of meetings for Planning Commission and City Council consideration of such applications for approval. Consistent with Section 5 of this Ag reement, the Parties acknowledge that CEQA compliance in connection with consideration of the Pr oject is required, and that City retains the discretion in accordance with applicable law, befor e action on the Project by the City Council to: (i) identify and impose m itigation measures to mitigate significant environmental impacts, (ii) select other feasible alternatives to avoid signi ficant environmental impacts, (iii) balance the benefits of the Project against any significant env ironmental impacts prior to taking final action if such significant impacts cannot otherwise be avoided; or (iv) determine not to proceed with the Project.

10. Defaults and Remedies.

10.1 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 right to terminate the Agreement under Section 12 or Section 13, the non-defaulting Party shall give wr itten 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, o r 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 10.2 or Section 10.3 below.

10.2 Exclusive Remedies for City Default. In the event of an uncured default by City, Developer’s sole and exclusive remedy is to terminate this Agre ement. 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 Partie s as set forth in Sections 11, 12, 17 and 18 hereof. Nothing herein shall be deemed to limit the Developer’s rights and remedies under the Reimbursement Agreement once entered into by the Parties.

10.3 Exclusive Remedies for Developer Default. Except as provided in Section 12 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, neithe r Party will have any right, remedy, or obligation under this Agreement, except for those su rviving rights and obligations of the Parties as set forth in Sections 11, 12, 17 and 18 hereof. Nothing herein shall be deemed to limit the City’s rights and remedies under the Reimbursement Agreement once entered into by the Parties.

10.4 No Damages. Except as provided in Section 12 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 ot her Party under this Agreement.

Subject to Section 12 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 punitiv e damages from the defaulting Party.

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For avoidance of doubt, Developer acknowledges that City has the right to recover actual damages under the Reimbursement Agreement, subject to the terms of that agreement.

10.5 Default under Reimbursement Agreement. Once the Reimbursement Agreement is entered into by the Parties, Developer’s default under the Reim bursement 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 oppor tunity to cure under Section 10.1 above.

11. Rights to and Delivery of Third-Party Materials.

Once submitted to the City, all documents, reports, and other w ork 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) desi gn 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 and Confidential Information) (collectively, “Third-Party Materials” ) shall become the property of the City upon expiration or earlier termination of this Agreement without the Parties having entered into a DDA, except if due to a mater ial default by City, Developer terminates this Agreement following notice and expiration of ap plicable cure periods. Developer shall use commercially reasonable efforts to include contractual language in all contracts with the engineers, designers, architects and other consultants producin g 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 worki ng 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 10.3, 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, de liver to City copies of all Third- Party Materials previously provided to City prior to expiration of the Negotiating Period or this Agreement in such formats as reasonably requested by City; prov ided, Developer shall not be required to deliver any Third-Party Materials to City if, due to a material default by City, Developer terminates this Agreement following notice and expiration of ap plicable cure periods. 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 connectio n with any future development or proposed development of the Development Footprint or other portion of the CRP Area, provided that as a condition precedent to any party’s use of the Third-P arty Materials, that party signs and delivers to Developer a release and indemnification agreement in a form approved by Developer whereby the user releases Developer from all claims and agrees to indemnify, defend and hold

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Developer harmless from all claims related to or arising from that party’s use of the Third-Party Materials. This Section 11 shall survive the expiration or earlier termination of this Agreement.

12. Non-Disparagement.

12.1 Disparaging Statement. Developer agrees that the Developer Restricted Individuals, as defined in Section 12.6, shall refrain from mak ing, 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 auth o r i z i n g a n y s t a t e m e n t s t o b e reported as being attributed to the Developer, that are disparaging or derogatory of any City Council member or City staffer, and which are intended to and which would reasonably be expected to injure the reputation or business of such individua l (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.

12.2 Notice and Demand to Meet and Confer. In the event where City c laims that Developer has made or authorized a Disparaging Statement in vio lation of this Section 12, City shall provide notice of such claimed violation in accordance with Section 16, along with a demand to Developer to meet and confer within five (5) business days of Developer’s receipt of said notice.

12.3 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 12.3.

12.4 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 12 .

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 O F

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 12, AND ASSUMING CITY HAS EXHAUSTED THE PROCEDURES DESCRIBED IN SECTION 12.2 AND SECTION 12.3, CITY MAY (I) IF THI S AGREEMENT

HAS NOT ALREADY EXPIRED OR BEEN TERMINATED, IMMEDIA TELY TERMINATE

THIS AGREEMENT BY WRITTEN NOTICE TO DEVELOPER, AND (II) RETAIN THE

UNEXPENDED PORTION OF THE DEPOSIT, 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 12 SHALL SU RVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT. BY PLACING THE INI TIALS

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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’s remedies for a Developer violation of Section 12 shall b e limited to termination of this Agreement and recovery of liquidated damages as set forth in this Section 12.4.

12.5 Developer’s Rights to Object. Developer’s objections to any development conditions made in a public hearing, its exercise of its admini strative or judicial rights of appeal of any action by the City, or its response to a Disparaging Sta tement 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.

12.6 Developer Restricted Individuals. The following individuals (th e “Developer Restricted Individuals”) are subject to this Section 12 and Section 13 below: Josh Ro den, Trece Herder, Gonzalo Rodriguez, Joe Guerra, Mandi Misasi, Tim Bacon, Peter Stone, Berk Gursoy, Emily Boyd, Jack Tse, Donna Estacio, David Sternberg, and John Samotyj.

13. Campaign Contributions.

13.1 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 or opposing the election or re-election, of (i) any appointed or elected si tting City of Concord official running for any elected office, or (ii) any candidate running for elect ed City office. Developer further agrees that during the term of this Agreement, (A) the Develope r 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 or opposing the election or re-election, of (i) any appointed o r elected sitting City of Concord official running for any elected office, or (ii) any candidate running for elected City office; and (B) Developer will (i) maintain a policy for its employees rega rding political contributions, and (ii) use commercially reasonable efforts to notify Developer’s contractors that neither Developer nor the Developer Restricted Individuals are permitted to solic it such contractors for political contributions in violation of this Section 13.1. Within ten (10 ) business days of the execution of this Agreement (or, in the case of newly appointed or newly ele cted officials, within ten (10) business days of such appointment or election), the City Manage r shall advise all appointed or elected sitting City of Concord officials in writing of the res trictions on campaign contributions set forth in this Section 13.1.

13.2 City Remedies. In the event City has reason to believe Develope r has violated its obligations under this Section 13, City may notify Developer in writing which notice shall include a brief recitation of the facts City believes constitute eviden ce of such violation. Developer shall have fifteen (15) days following receipt of such notice to prov ide any exculpatory evidence

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demonstrating that no such violation has occurred. Within ten ( 10) days of Developer providing exculpatory evidence to the City, the Parties shall meet and co nfer in an attempt to resolve the matter. If the City Manager or designee determines that Developer has violated its obligations under this Section 13 and if the matter is not resolved within fifteen (15) days of Developer providing exculpatory evidence to the City, or within the 10-da y period if Developer fails to provide any such exculpatory evidence, the City Manager may immediately terminate this Agreement by written notice to Developer, and wit hout affording Developer any opportunity to cure such violation.

13.3 AB 1439. Developer also acknowledges its obligations under other laws governing campaign contributions, including AB 1439, which prohibits elected and appointed officials from accepting, soliciting or directing a campaign contribution of m ore than $250 from any “party” to or “participant,” in a proceeding involving a license, permit or other entitlement for use both while that proceeding is pending and for 12 months following the date a final decision is rendered.

14. 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 termin ated 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, subject to the terms of this Agreement that survive termination or expiration.

15. 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 Negoti ation 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 sh all be in a form acceptable to City, Navy, and Developer and consistent with any existing right of e ntry 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.

16. Notices.

Any approval, disapproval, demand or other notice which any Par ty 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 Part y as set forth below, or at any other address as that Party may later designate by notice:

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To Developer: BCUS Acquisitions LLC
c/o Brookfield Properties
12657 Alcosta Boulevard, Suite 250
San Ramon, CA 94583
Attention: Josh Roden
Telephone: (925) 743-8000
Email: [email protected]
With a copy to: BCUS Acquisitions LLC
c/o Brookfield Properties
3200 Park Center Drive, Suite 1000
Costa Mesa, CA 92626
Attention: Jillian Richmond
Telephone: (213) 459-1632
Email: [email protected] And: Cox, Castle & Nicholson LLP
50 California Street, Suite 3200
San Francisco, CA 94111-4710
Attention: Margo Bradish
Telephone: (415) 262-5100
Email: [email protected]
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]
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]

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Any notice shall be deemed given on the date of delivery if del ivered 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 befo re 5:00 PM local time (of the recipient) on a business day, and otherwise on the next business day.

17. Confidentiality of Information.

Any information provided by Developer to City, including pro fo rmas 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 17. 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 Confide ntial 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 relea se 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 Confid ential 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 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 In formation 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. I f 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 app ropriate 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, antici pated project revenues, and returns

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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 an y necessary legal actions to enjoin or prevent the disclosure of the Confidential Information.

Developer shall defend, indemnify, and hold harmless City and i ts officers, officials, employees, volunteers, agents, attorneys, and representatives ( collectively, “Indemnitees”) from and against any and all Claims arising out of or in any way con nected 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 brou ght by a third-party seeking or objecting to the disclosure of that Confidential Information.

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 b y 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 di sclosure; (iv) is independently developed by City without any breach of this Agreement and with out any use of or access to Developer’s Confidential Information as evidenced by City’s rec ords; (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.

City’s and Developer’s obligations under this Section 17 shall survive the expiration or termination of this Agreement.

18. 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 wit h 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 18 shall survive expiration or termination of this Agreement.

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19. Assignment.

The qualifications and identity of Developer were material cons iderations 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, exce pt as provided below.

Notwithstanding the foregoing, Developer may assign this Agreem ent in its entirety without approval by the City to an Affiliate (defined below) of Develop er, provided that Brookfield Corporation, a corporation organized under the laws of the Province of Ontario, Canada (formerly known as Brookfield Asset Management Inc.) and/or Brookfield As set Management Limited, a corporation organized under the laws of British Columbia, or any successors thereto who succeed to all or substantially all of their business or assets and directly or indirectly has the majority voting and profits interests in such entity. Developer shall provide n ot 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.

20. 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.

21. 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 une nforceable to any extent, the remaining provisions of this Agreement and the application ther eof shall remain in full force and effect and shall not be affected, impaired, or invalidated.

22. Integration.

This Agreement, together with the Reimbursement Agreement, cont a i n s t h e e n t i r e understanding between the Parties relating to the matters set f orth 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.

23. Modifications.

Any alteration, change, or modification of or to this Agreement , i n o r d e r t o b e c o m e effective, shall be made in writing and in each instance signed on behalf of each Party.

24. 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 o f the CRP Area with respect to this Agreement or any dispute or act arising from this Agreement.

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25. 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 whe n 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. T itles and captions are for c onvenience of reference only and do not define, describe, or limit the scope or the intent of this Agreement or any of its terms.

26. Authority.

Each person executing this Agreement on behalf of Developer does hereby covenant and warrant that: (a) Developer is created and validly existing und er the laws of Delaware; (b) Developer has and is duly qualified to do business in Californi a; (c) Developer has full company 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) sig ning this Agreement on behalf of Developer is duly and validly authorized to do so.

27. Non-Liability of Officials, Employees and Agents.

No City council member, board member, commission member, offici al, employee, attorney or agent of City shall be personally liable to Developer, or any successor in interest to Developer, in the event of any default or breach by City of any representation, warranty, or covenant herein, or for any amount which may become due to Deve loper or any successor or on any obligation under the terms of this Agreement. No direct or indirect principal, member, partner, officer, director, employee, attorney or agent of Developer sha ll be personally liable to City, or any successor in interest to City, in the event of any default or breach by Developer of any representation, warranty, or covenant herein, or for any amount which may become due to City or any successor or on any obligation under the terms of this Agreement.

28. 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.

29. Joint and Several.

If Developer consists of more than one entity or person, the ob ligations of Developer hereunder shall be joint and several.

30. 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.

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31. List of Exhibits.

The following Exhibits 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]

4887-6694-5398 v7 [Signature Page to Exclusive Agreement to Negotiate] 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
BCUS ACQUISITIONS LLC, a Delaware
limited liability company

By: By:

Name: Valerie Barone Name: Josh Roden
Title: City Manager Title: Authorized Representative
APPROVED AS TO FORM:

By:

Susanne Brown, City Attorney

Exhibit A
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EXHIBIT A

SITE MAP

4887-6694-5398 v7 Exhibit B - 1

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 whi ch 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 cor responding with Developer’s phased build out of the Project, including defining the backbone infrastructure required for each phase.
 The terms under which Developer would be perm itted to assign or transfer its interests in the DDA to affiliates.
 The terms, including conditions precedent to closing, under whi ch Developer would be permitted to c onvey subdivided, developable portions of the Development Footp rint, 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, developabl e portions of the Development Footprint, or applicable portion thereof, to the vertical developer(s).  The terms under which Developer w ill 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.
 The terms under which Developer will be permitted to participate in negotiations with other agencies with jurisdiction over the Project such as the resource agencies, and agencies that interface with the Project such as EBRPD and BART.
 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 monitori ng in accordance with the certified Final EIR for the Reuse Plan, Addendum for the CR P Area Plan, and other environmental documents.

4887-6694-5398 v7 Exhibit B - 2
 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.
 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, incl uding 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 Lightin g 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 relating to Developer’s obligation to fund and/or constru ct community improvements such as the library/community center, tournament sports park, and city-wide park, and public improvements such as those for Willow Pass Road, Evora Road, and trail connections to the EBRPD property.
 Terms regarding leasing of land and structures within the Devel opment 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 prec edent 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.

4887-6694-5398 v7 Exhibit B - 3
 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.
 The terms under which Developer would reimburse City for City’s past costs related to the Project (estimated at $15 million).
 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 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.

Agenda Item No. 2.a
Benched Exhibit A
to Attachment 1

Appendix G
Template Exclusive Agreement
to Negotiate

EXCLUSIVE AGREEMENT TO NEGOTIATE
by and between

CITY OF CONCORD
(“City”)
and
[COMPANY NAME]

BCUS ACQUISITIONS LLC
(“Developer”)
Dated ___________________, 2023
Agenda Item No. 2.a
Benched REDLINE
Exhibit A to
Attachment 1 - ENA

TABLE OF CONTENTS

Page
i

4887-6694-5398 v7

1. Incorporation of Recitals.................................................................................................... .2

2. Exclusive Negotiations ...................................................................................................... .2

3. Negotiating Period ............................................................................................................. .2

3.1 Preliminary Stage ................................................................................................... .2

3.2 DDA Stage .......................................................................................................... .32

3.3 Extensions ........................................................................................................... .33

4. Exclusivity of Negotiations................................................................................................ .3

5. Project Implementation ...................................................................................................... .4

6. Reimbursement of City Costs ..............................................................................................4

6.1 Preliminary Stage .....................................................................................................4

6.2 DDA Stage; Reimbursement Agreement .................................................................4

67. Developer’s Representations and Warranties ................................................................. .45

7.1 Authority ..................................................................................................................5

7.2 No Conflict...............................................................................................................5

7.3 Litigation or Other Proceedings ...............................................................................5

7.4 Financial Statements; No Material Change in Financial Condition ........................5

7.5 No Developer Bankruptcy .......................................................................................5

78. Progress Reports and Information .................................................................................. .55

89. Limitations on Effect of Agreement ............................................................................... .56 910. Defaults and Remedies ................................................................................................... .67

9.110.1 ............................................................................................................................... Default ............................................................................................................................. .67

9.210.2Exclusive Remedies for City
Default................................................................................................................. .67

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9.310.3Exclusive Remedies for Developer
Default................................................................................................................. .67

9.410.4 ....................................................................................................................................... No Damages .............................................................................................................. .67

9.510.5Default under the Reimbursement
Agreement ........................................................................................................... .77 1011. Rights to and Delivery of Third-Party Materials ............................................................ .77 1112. Non-Disparagement ........................................................................................................ .78

11.112.1 ................................................................................................................... Disparaging Statement............................................................................................................. .78

11.212.2Notice and Demand to Meet and
Confer ................................................................................................................. .88

11.312.3 ...................................................................................................................... Mediation ............................................................................................................................. .89

11.412.4 ..................................................................................................................... Liquidated Damages .............................................................................................................. .89

12.5 Developer’s Rights to Object ...................................................................................9

12.6 Developer Restricted Individuals .............................................................................9 1213. Campaign Contributions ............................................................................................... .910

12.113.1Campaign Contribution
Restrictions ....................................................................................................... .910

12.213.2 ................................................................................................................................. City Remedies ........................................................................................................... .910

13.3 AB 1439 .................................................................................................................10

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1314. Rights Following Expiration or Termination ................................................................ .910 1415. Right to Enter the Development Footprint/City Property Documents.......................... .911 1516. Notices ....................................................................................................................... .1011 1617. Confidentiality of Information ................................................................................... .1112 1718. No Commissions ........................................................................................................ .1314 1819. Assignment ................................................................................................................ .1314 1920. Applicable Law; Venue ............................................................................................. .1314 2021. Severability ................................................................................................................ .1415 2122. Integration .................................................................................................................. .1415 2223. Modifications ............................................................................................................. .1415 2324. Waiver of Lis Pendens ............................................................................................... .1415 2425. Interpretation .............................................................................................................. .1415 2526. Authority .................................................................................................................... .1415 2627. Next Business Day ..................................................................................................... .1515 2728. Joint and Several ........................................................................................................ .1516 2829. Counterparts ............................................................................................................... .1516 2930. List of Exhibits ........................................................................................................... .1516

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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] [BCUS ACQUISITIONS LLC , a Delaware limited liability company type] (“Developer”). City and Developer are sometimes referred to individually he rein as a “Party” and collectively as the “Parties.”

RECITALS
A. The Concord Naval Weapons Station was once the United States Na vy’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 t he 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 designate d 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 th e CRP Area will be set aside as a regional park for habitat conservation/restor ation, open space, and passive recreation (“Regional Park” ) pursuant to a public benefit conveyance from the United State s 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 us es, including, potentially, a first responder training fac ility (“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 Nav y 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 co mpleted a FOST for an initial transfer of 1,304 acres of the Development Footprint. The CRP A rea, the Regional Park, and the Development Footprint are each depicted on the Site Map attached hereto as Exhibit A.

C. C i t y i s s u e d a R e q u e s t f o r Q u a l i f i c a t i o n s (“RFQ”) for development of the Development Footprint on ________May 15, 2023. On __________August 26, 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 wi th respect to the Project ( “Term

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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 als o establishes procedures and standards for the negotiation and drafting of a comprehensive proposed 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 m ultiple phased closings, and Developer’s implementation, either itself or in cooperation wit h 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, administratio n, 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 i n such recitals and in the introductory paragraph preceding the recitals, are hereby incor porated 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 dil igently negotiate the terms of a mutually satisfactory DDA, including a form of statutory Develo pment 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 mu ltiple 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 exten ded as provided in Section 3.3 below, one hundred twenty (120) calendar days there after. 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

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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.

3.2 DDA Stage.
(a) (a)If, and only if , prior to expiration of the Preliminary Stage, as may be extended pursuant to Section 3.3 below , the Parties reach agreement on a mutually acceptable T e r m S h e e t a n d Reimbursement Agreement (as defined in Section 6.2 below), such Reimbursement Agreement has been executed by the Developer prio r t o t h e C i t y C o u n c i l ’ s consideration of the Term Sheet, and the City Council approves the Term Sheet prior to expiration of the Preliminary Stage, as may be extended pursuant to Sectio n 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) month s 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 b y City. If a DDA has not been executed by City and Developer by the expiration of the DDA Sta ge, then this Agreement shall terminate and neither Party shall have any further rights or obligations under this Agreement, except as set forth herein.
(b) (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 first deposit under the Reimbursement Agreement (defined in Section 6.2 below), 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 an additional one hundred twenty fifty (120150) calendar days in total (for a maximum total of two hundred seventy (270) calendar days for th e Preliminary Stage) 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 The DDA Stage may be extended one or more times for a period not to exceed an additional ninety (90) calendar days by the City Manager or designee if such official determines in their sole discretion that such an extension is necessary to address delay s related to CEQA compliance or negotiations with the Navy. In addition, possible administrative extensions of the DDA Stage may be set forth in the Term Sheet and, if the Term Sheet is approv ed 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 sha ll 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.

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4. Exclusivity of Negotiations.

During the Negotiating Period, the City shall negotiate exclusi vely with Developer regarding implementation of the Project. Notwithstanding the ab ove, during the entirety of the Negotiating Period, this Agreement does not prevent City from p roviding information regarding the Project or implementation thereof (other than Developer’s Confidential Information as defined in Section 16 17 below) to persons or entities other than Developer or engaging in negotiations with other public entities, including the Navy, San Francisco B ay 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.

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. Reimbursement of City Costs.

6.1 Preliminary Stage. Developer has, prior to or concurrent with the execution of this Agreement by City, provided to City a cash deposit in the amount of Two Hundred Fifty Thousand Dollars ($250,000) (“Deposit”). City is entitled to draw against the Deposit and apply such draws to pay all City Costs (defined below) incurred between the Sele ction Date and the Effective Date and during the Preliminary Stage of the Negotiating Period. Wit hin ten (10) days of the Effective Date, City shall provide Developer with a report itemizing all City Costs incurred through the Effective Date and a “time and materials” rate sheet for all Ci ty staff working on the Project.

Thereafter, City shall provide Developer with monthly invoices for City Costs. Such invoices must provide sufficient detail from which Developer may confirm who performed the services, the nature of the work performed, the hours worked, the developer r eimbursable rates charged to the City, and that the services performed are properly included wit hin City Costs. Developer acknowledges that the information shown on the outside legal counsel invoices w ill be general in nature, shall include only a high level summary of time spent and amount payable for each billing period, and shall not include details that may be included in b illing statements provided to City, which the Parties acknowledge are attorney-client privileged. I f the City Council approves the Term Sheet, the remaining balance of the Deposit, if any, will be retained by City and credited towards Developer’s obligation to provide the initial deposit under the Reimbursement Agreement (as defined in Section 6.2 below). If the Parties are unable to reach agreement on a mutually acceptable Term Sheet or if City Council does not approve the Term Sheet, the remaining Deposit funds, if any, shall be retained by City for six (6) months fol lowing expiration of the Preliminary Stage to secure performance of Developer’s obligations under Section 17 below. Within thirty (30)

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days following expiration of said 6-month period and confirmation that Developer is not in breach of its obligations under Section 17, the unexpended and uncommitted portion of the Deposit, if any, shall be refunded by City to Developer. As used in this Agreement, “City Costs” means and includes all internal and third party expenses incurred by City between the Selection Date and the Effective Date in connection with the negotiation and drafting of this Agreement and during the Preliminary Stage in connection with the negotiation and drafting of the Term Sheet, including but not limited to expenses of City/LRA staff, financial consultants, attorneys, planners, and engineers retained to negotiate and draft this Agreement and the Term Sheet, and prepare analyses regarding the timing and Developer’s financial ability to complete the Project, all related solely to the Project.

City may not impose any “upcharge” or “overhead” fee or charge on the rates payable under any outside vendor- or third party consultant-related contracts for City Costs. City’s obligations under this Section 6.1 shall survive the expiration or termination of this Agreement.

6.2 DDA Stage; Reimbursement Agreement. Prior to the expiration of the Preliminary Stage and as a condition precedent to commencement of the DDA Stage, the Parties shall mutually agree upon and execute an administratively approved reimbursement agreement (“Reimbursement Agreement ”) to provide a mechanism for Developer to pay all costs to be incurred by City in connection with the Project from the commen cement of the DDA Stage and continuing through full implementation of the DDA and any anc illary agreements, including without limitation, any statutory Development Agreement. The Re imbursement Agreement will include, among other things, an opportunity for Developer to review and comment upon scopes of work and associated budgets for such outside vendors and third party consultants. The Reimbursement Agreement must be signed by Developer prior to consideration of the Term Sheet by the City Council.

7. Developer’s Representations and Warranties.

Developer represents and warrants to City as follows:

7.1 Authority. Developer is a ____________ limited liability company duly organized in the State of ________ Delaware and in good standing under the laws of the State of California.

Developer has full right, power, and lawful authority to undert ake all of its obligations under this Agreement, and Developer’s execution and delivery of this Agree ment, and the performance of the obligations of Developer hereunder have been duly authorized by all requisite company actions on the part of Developer.

7.2 6.2No Conflict. Developer’s execution, delivery and performance of its obligations under this Agreement will not cons titute 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.

7.3 6.3Litigation or Other Proceedings. The litigation disclosures previously provided by Developer to City in connection with Developer’s Statement o f Qualifications (“ SOQ”) response to the RFQ are true and complete in all material respe cts. As of the Effective Date, Developer is not a party to, or subject of, any development pro ject-related litigation other than as previously disclosed to City in connection with Developer’s SOQ submittal. Further, to

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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.

7.4 Financial Statements; No Material Change in Financial Condition6.4. The financial statements previously submitted by Developer to City in c onnection with Developer’s SOQ submittal are true and accurate in all material respects. There As of the Effective Date, to Developer’s knowledge, there have been no material changes in Developer’s financial conditio n from the financial condition as reflected in the financial statements previously submitted by Developer.

7.5 No Developer Bankruptcy 6.6. As of the Effective Date, neither Developer nor Developer’s manager or managing member, as applicable, is the s ubject 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 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 s eizure 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 7 untrue or misleading.

8. 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 sha ll 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 incurr ed 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 Footpri nt reasonably available to City, including all non-privileged information concerning the CRP Area, CRP Area Plan, the timing of Navy FOST determinations and conveyances, 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 de velopers. 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 t o be confidential or proprietary developer information.

9. Limitations on Effect of Agreement.

This Agreement (and any extension of the Negotiating Period) do es 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 comm itting itself to, or agreeing to,

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undertake disposition of the Development Footprint or any portion thereof and Developer is not committing itself to acquire the Development Footprint or any p ortion thereof. Execution of this Agreement by City and Developer is merely an agreement to condu ct a period of diligent, good faith negotiations in accordance with the terms hereof, reservi ng 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 authorize d representatives of City and Developer. Until and unless a DDA is signed by Developer, approved by the City C ouncil, 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 a ny oral or implied agreement by either Party to enter into any other legally binding agreement.

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 coordi n a t e w i t h D e v e l o p e r t h e scheduling of meetings for Planning Commission and City Council consideration of such applications for approval. Consistent with Section 5 of this Ag reement, the Parties acknowledge that CEQA compliance in connection with consideration of the Pr oject is required, and that City retains the discretion in accordance with applicable law, befor e action on the Project by the City Council to: (i) identify and impose m itigation measures to mitigate significant environmental impacts, (ii) select other feasible alternatives to avoid signi ficant environmental impacts, (iii) balance the benefits of the Project against any significant env ironmental impacts prior to taking final action if such significant impacts cannot otherwise be avoided; or (iv) determine not to proceed with the Project.

10. Defaults and Remedies.

10.1 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 12 or Section 1213, 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, o r 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 10.2 or Section 9.3 10.3 below.

10.2 Exclusive Remedies for City Default. In the event of an uncured default by City, Developer’s sole and exclusive remedy is to terminate this Agre ement. 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 Partie s as set forth in Sections 10, 11, 16

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12, 17 and 17 hereof18 hereof. Nothing herein shall be deemed to limit the Developer’s rights and remedies under the Reimbursement Agreement once entered into by the Parties.

10.3 Exclusive Remedies for Developer Default. Except as provided in Section 11 12 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, neithe r Party will have any right, remedy, or obligation under this Agreement, except for those su rviving rights and obligations of the Parties as set forth in Sections 10, 11, 16 12, 17 and 17 18 hereof. Nothing herein shall be deemed to limit the City’s rights and remedies under the Reimbursement Agreement once entered into by the Parties.

10.4 No Damages. Except as provided in Section 11 12 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 12 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, sp ecial, or punitive damages from the defaulting Party. For avoidance of doubt, Developer acknowledge s that City has the right to recover actual damages under the Reimbursement Agreement, subje ct to the terms of that agreement.

10.5 Default under Reimbursement Agreement 9.5. O n c e the Reimbursement Agreement. is entered into by the Parties, 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 righ t to immediately terminate this Agreement by written notice to Developer without having to prov ide any further opportunity to cure under Section 9.1 10.1 above.

11. Rights to and Delivery of Third-Party Materials.

Once submitted to the City, all documents, reports, and other w ork 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) desi gn 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 and Confidential Information ) (collectively, “Third-Party Materials” ) shall become the property of the City . Developer shall upon expiration or earlier termination of this Agreement without the Parties having entered into a DDA, except if due to a material default by City, Developer terminates this Agreement following notice and expiration of applicable cure periods. Developer shall use commercially reasonable efforts to 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 design ees without payment by City or its designees, provided such contractual language w ill not require those third-party consultants to

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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 9.310.3, 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, de liver to City copies of all Third- Party Materials previously provided to City prior to expiration of the Negotiating Period or this Agreement in such formats as reasonably requested by City. Except for ; provided, Developer shall not be required to deliver any Third-Party Materials subject to Section 16 below to City if , and subject due to a material default by City, Developer terminates this Agreement following notice and expiration of applicable cure periods. 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 , provided that as a condition precedent to any party’s use of the Third-Party Materials, that party signs and delivers to Developer a release and indemnification agreement in a form approved by Developer whereby the user releases Developer from all claims and agrees to indemnify, defend and hold Develo per harmless from all claims related to or arising from that party’s use of the Third-Party Materials. Developer’s obligations under this This Section 10 11 shall survive the expiration or earlier termination of this Agreement.

12. Non-Disparagement.

12.1 Disparaging Statement. Developer agrees that the Developer Restricted Individuals, as defined in Section 11.612.6, 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 Council member or City staffer, and which are intended to and which would reasonably be expected to injure the reputation or business of such individua l (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.

12.2 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 1112, City shall provide notice of such claimed violation in accordance wi th Section 1516, along with a demand to Developer to meet and confer within five (5) business days of Developer’s receipt of said notice.

12.3 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

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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 11.312.3.

12.4 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 1112.

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 O F

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 1112, AND ASSUMING CITY HAS EXHAUSTED THE PROCEDURES DESCRIBED IN SECTION 11.2 12.2 AND SECTION 11.312.3, 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 THE 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 12 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’s remedies for a Developer violation of Section 12 shall b e limited to termination of this Agreement and recovery of liquidated damages as set forth in this Section 12.4.

12.5 Developer’s Rights to Object. Developer’s objections to any development conditions made in a public hearing, its exercise of its admini strative or judicial rights of appeal of any action by the City, or its response to a Disparaging Sta tement 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.

12.6 Developer Restricted Individuals. The following individuals (the “ Developer Restricted Individuals ” ) a r e s u b j e c t t o t h i s S e c t i o n 11 and Section 12 below:
______________________________________________12 and Section 13 below: Josh Roden, Trece Herder, Gonzalo Rodriguez, Joe Guerra, Mandi Misasi, Tim Bacon, Peter Stone, Berk Gursoy, Emily Boyd, Jack Tse, Donna Estacio, David Sternberg, and John Samotyj.

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13. Campaign Contributions.

13.1 Campaign Contribution Restrictions. D u r i n g t h e t e r m o f t h i s A g r e e m e n t , 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 s upporting or opposing the election or re-election, of (i) any appointed or elected s itting City of Concord official running for any elected office, or (ii) any candidate running for elected City office.

Developer further agrees that during the term of this Agreement, (A) the Developer Restricted Individuals shall not solicit its or their or Developer’s emplo yees, contractors, or subcontractors working on the Project to make any political contribution(s) to the campaign, or any political action committee supporting or opposing the 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 ; and (B) Developer will (i) maintain a policy for its employees regarding political contributions, and (ii) use commercially reasonable efforts to notify Developer’s contractors that neither Developer nor the Developer Restricted Individuals are permitted to solicit such contractors for political contributions in violation of this Se ction 13.1. 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 12.113.1.

13.2 City Remedies. In the event City has reason to believe Developer has violated its obligations under this Section 1213, 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 t o provide any exculpatory evidence demonstrating that no such violation has occurred. Following expiration of such 15-day period City Within ten (10) days of Developer providing exculpatory evidenc e to the City, the Parties shall meet and confer in an attempt to resolve the matter. If t h e C i t y M a n a g e r o r d e s i g n e e determines that Developer has violated its obligations under this Section 13 and if the matter is not resolved within fifteen (15) days of Developer providing exculp atory evidence to the City, or within the 10-day period if Developer fails to provide any such exculpatory evidence, the City Manager may immediately terminate this Agreement by written notice to D eveloper, and without affording Developer any opportunity to cure such violation, if City determines that Developer has violated its obligations under this Section 12. .

13.3 AB 1439. Developer also acknowledges its obligations under other laws governing campaign contributions, including AB 1439, which prohibits elected and appointed officials from accepting, soliciting or directing a campaign contribution of m ore than $250 from any “party” to or “participant,” in a proceeding involving a license, permit or other entitlement for use both while that proceeding is pending and for 12 months following the date a final decision is rendered.

14. 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 termin ated in accordance with its terms,

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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 , subject to the terms of this Agreement that survive terminati on or expiration.

15. 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 Negoti ation 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 sh all be in a form acceptable to City, Navy, and Developer and consistent with any existing right of e ntry 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.

16. Notices.

Any approval, disapproval, demand or other notice which any Par ty 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 Part y as set forth below, or at any other address as that Party may later designate by notice:

To Developer: _______________________BCUS Acquisitions LLC c/o Brookfield Properties
_______________________
_______________________
Telephone: _____________
Email: _________________

12657 Alcosta Boulevard, Suite 250
San Ramon, CA 94583
Attention: Josh Roden
Telephone: (925) 743-8000
Email: [email protected]
With a copy to_______________________: BCUS Acquisitions LLC c/o Brookfield Properties
_______________________
_______________________
_______________________
Telephone: _____________

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Email: _________________

3200 Park Center Drive, Suite 1000
Costa Mesa, CA 92626
Attention: Jillian Richmond
Telephone: (213) 459-1632
Email: [email protected] And: Cox, Castle & Nicholson LLP
50 California Street, Suite 3200
San Francisco, CA 94111-4710
Attention: Margo Bradish
Telephone: (415) 262-5100
Email: [email protected]
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]
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 del ivered 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 befo re 5:00 PM local time (of the recipient) on a business day, and otherwise on the next business day.

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17. Confidentiality of Information.

Any information provided by Developer to City, including pro fo rmas 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 1617. 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 disc losed. Developer acknowledges that City has not made any representations or warranties that a ny 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 relea se 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 Confid ential 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 Section (“Objection Notice ” ) . C i t y m a y r e l e a s e t h e 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 requi res City to release Confidential Information, or (iii) the City’s City Attorney, in their reason able 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 Dev eloper then fails to file and obtain a temporary restraining order or other similar injunctiv e 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 app ropriate 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, antici pated 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 an y necessary legal actions to enjoin or prevent the disclosure of the Confidential Information.

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Developer shall defend, indemnify, and hold harmless City and i ts officers, officials, employees, volunteers, agents, attorneys, and representatives ( collectively, “Indemnitees”) from and against any and all Claims arising out of or in any way con nected 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 brou ght 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 In demnitees from any and all present and future Claims arising out of or in any way conn ected 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

MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY.

As such relates to this Section, Developer hereby waives and re linquishes 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 b y 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 di sclosure; (iv) is independently developed by City without any breach of this Agreement and with out any use of or access to Developer’s Confidential Information as evidenced by City’s rec ords; (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.

City of Concord Concord Naval Weapons Station Reuse Project Area Plan Implementation Request for Master Development Qualifications

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City’s and Developer’s obligations under this Section 17 shall survive the expiration or termination of this Agreement.

18. 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 wit h 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 thi s Section 17 18 shall survive expiration or termination of this Agreement.

19. 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 writ ten 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 provide d 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 company] (a) has responsibility for the day-to-day entitlement and development activities of such entity; and (b) has Brookfield Corporation, a corporation organized under the laws of the Province of Ontario, Canada (formerly known as Brookfield Asset Management Inc.) and /or Brookfield Asset Management Limited, a corporation organized under the laws of B ritish Columbia, or any successors thereto who succeed to all or substantially all of their business or assets and directly or indirectly has the 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 directly or indirectly controls, in is controlled by or under common control with Developer.

20. 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.

21. 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 une nforceable to any extent, the remaining provisions of this Agreement and the application ther eof shall remain in full force and effect and shall not be affected, impaired, or invalidated.

City of Concord Concord Naval Weapons Station Reuse Project Area Plan Implementation Request for Master Development Qualifications

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22. Integration.

This Agreement, together with the Reimbursement Agreement, cont a i n s t h e e n t i r e understanding between the Parties relating to the matters set f orth 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.

23. Modifications.

Any alteration, change, or modification of or to this Agreement , i n o r d e r t o b e c o m e effective, shall be made in writing and in each instance signed on behalf of each Party.

24. 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 o f the CRP Area with respect to this Agreement or any dispute or act arising from this Agreement.

25. 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 whe n 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. T itles and captions are for c onvenience of reference only and do not define, describe, or limit the scope or the intent of this Agreement or any of its terms.

26. 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]_____, Delaware; (b) Developer has and is duly qualified to do business in California, ; (c) Developer has full corporate company 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.

27. Non-Liability of Officials, Employees and Agents.

No City council member, board member, commission member, offici al, employee, attorney or agent of City shall be personally liable to Developer, or any successor in interest to Developer, in the event of any default or breach by City of any representation, warranty, or covenant herein, or for any amount which may become due to Deve loper or any successor or on any obligation under the terms of this Agreement. No direct or indirect principal, member, partner, officer, director, employee, attorney or agent of Developer sha ll be personally liable to City, or any successor in interest to City, in the event of any default or breach by Developer of any

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representation, warranty, or covenant herein, or for any amount which may become due to City or any successor or on any obligation under the terms of this Agreement.

28. 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.

29. Joint and Several.

If Developer consists of more than one entity or person, the ob ligations of Developer hereunder shall be joint and several.

30. 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.

31. List of Exhibits.

The following Exhibit Exhibits 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]

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19 4891-8160-5471 v3
4887-6694-5398 v7 [Signature Page to Exclusive Agreement to Negotiate] 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___________________________________BCUS
ACQUISITIONS LLC, a Delaware limited
liability company

By: By:

Name: Valerie Barone Name: Josh Roden
Title: City Manager Title: Authorized Representative
APPROVED AS TO FORM:

By:

Susanne Brown, City
Attorney

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Exhibit A
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EXHIBIT A

EXHIBIT A

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Exhibit A
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SITE MAP

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4887-6694-5398 v7 Exhibit B - 1

EXHIBIT B

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 whi ch 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 cor responding with Developer’s phased build out of the Project, including defining the backbone infrastructure required for each phase.
 The terms under which Developer would be perm itted to assign or transfer its interests in the DDA to affiliates.
 The terms, including conditions precedent to closing, under whi ch Developer would be permitted to c onvey subdivided, developable portions of the Development Footp rint, 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, developabl e portions of the Development Footprint, or applicable portion thereof, to the vertical developer(s).  The terms under which Developer w ill 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.
 The terms under which Developer will be permitted to participate in negotiations with other agencies with jurisdiction over the Project such as the resource agencies, and agencies that interface with the Project such as EBRPD and BART.
 Requirements regarding compliance with the City’s policies on prevailing wages, local hire and apprenticeship programs and potential Project Labor Agreements.

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 Requirements for implementing site-wide mitigation and monitori ng in accordance with the certified Final EIR for the Reuse Plan, Addendum for the CR P 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.
 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, incl uding 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 Lightin g 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 relating to Developer’s obligation to fund and/or constru ct community improvements such as the library/community center, tournament sports park, and city-wide park, and public improvements such as those for Willow Pass Road, Evora Road, and trail connections to the EBRPD property.
 Terms regarding leasing of land and structures within the Devel opment Footprint, or applicable portion thereof, including terms under which City would lease land and

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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 prec edent 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.
 The terms under which Developer would reimburse City for City’s past costs related to the Project (estimated at $15 million).
 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 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.

-----Original Message-----
From: Jackie Maguire <[email protected]>
Sent: Thursday, September 14, 2023 2:27 PM
To: Cityinfo <[email protected]>
Subject: Concord Naval Base development

Dear Members of Concord City Council,

I was EXTREMELY dismayed and angered about the most recent plan to collaborate with Saudi Arabia & Qatar to secure funding needed for the Concord Naval Base redevelopment project.

Brookfield Properties may have deep pockets, but linking our future with any monies from such entities is by no means a “win-win” situation- It’s disgraceful to “get it bed” with such companies, putting Concord’s future at great future risk.

Just because “everyone’s doing it”, doesn’t make it right. Money is NOT alway the bottom line. Integrity and principles are. Isn’t that we teach in schools? To “do the right thing”? PLEASE go back to the drawing board and make sure that we find local, honest, creative and ethical developers to make this project become a reality, even if it means doing things in smaller, well-planned steps and a longer timeline.

Please don’t do something that can’t be undone!!

Respectfully,
Jackie Maguire

Benched Correspondence
Agenda Item No. 2.a
September 19, 2023

From: Hope Johnson <[email protected]>
Sent: Tuesday, September 19, 2023 8:31 PM
To: Obringer, Carlyn <[email protected]>; Brown, Susanne <[email protected]>
Cc: Hoffmeister, Laura <[email protected]>; Birsan, Edi <[email protected]>; Aliano, Dominic <[email protected]>; Nakamura, Laura <[email protected]>; City Clerk <[email protected]> Subject: ENA Section 20 does not cover bankruptcy

Councilmember Obringer:

Thank you for asking about the corporate bankruptcy laws at tonight's meeting. However, the city attorney misled you in her answer.

Section 20 of the ENA does not apply to corporate bankruptcy. Section 20 applies only to the terms within the ENA, and management of bankruptcy assets between Concord and Brookfield Properties isn't one of them. (Section 20 "venue for any action under this Agreement shall be in Contra Costa County, California" and a bankruptcy by either BCUS or Brookfield Properties is not an "action under" the ENA. A bankruptcy by the developer has nothing to do with its relationship to Concord or any agreement with Concord unless specifically written into the agreement, Concord will just become a creditor seeking reimbursement if BCUS or Brookfield Properties files bankruptcy while holding title to land and, as you can see, Section 20 will not help Concord.) The only requirement related to bankruptcy in the ENA is that the developer notify Concord if it does file for bankruptcy. Nearly all corporate bankruptcies are immediately transferred to the State of Delaware, where laws favor the corporations, which is why nearly all corporations are formed there. Without adding to the ENA or potential DDA specifically that BCUS and Brookfield Properties agree to use State of California courts for bankruptcy negotiations, any bankruptcy by BCUS or Brookfield Properties will go to Delaware courts.

As you may recall, this is how the City of Vallejo ended up having to buy back its own land from Lennar at Mare Island and how CalPERS lost $900M dollars.

Basically, Lennar formed a subsidiary called Lennar Mare Island when Lennar became master developer at Mare Island. Lennar Mare Island and an investment company partner borrowed money and also took money from investors including taking $900M from CalPERS seemingly to fund the Mare Island project. In addition, the City of Vallejo transferred (without compensation) to Lennar Mare Island title of large sections of land in order for Lennar Mare Island to begin placing large up front infrastructure.

Over time, parent company Lennar transferred money assets from Lennar Mare Island to itself. When the housing crisis hit, Lennar had all the money and Lennar Mare Island filed for bankruptcy and that bankruptcy was managed in Delaware. Because Lennar was parent company to now bankrupt Lennar Mare Island, Lennar was (1) in control of Benched Correspondence received
after 3 p.m. on September 19
Agenda Item No. 2.a
September 19, 2023

working with the Delaware court to satisfy creditors and (2) now owned and managed all assets owned by bankrupt Lennar Mare Island. And what assets did Lennar Mare Island own? Title to land at Mare Island that the City of Vallejo had signed over to it. Lennar struck a deal with the City of Vallejo to sell Vallejo back the land and Vallejo had to buy it back from them. CalPERS was just out of luck as a creditor and lost $900M (there are plenty of articles about all this online for anyone to read).

This is why Dan Helix agreed with some of us on this and insisted on no middle company being between Lennar and Concord (even though Lennar had two partners in Five Point, Lennar was the largest shareholder which usually means that it would be considered the managing partner in a bankruptcy court in Delaware). And you can see that Josh Roden almost let you know the same thing when you asked him about it this evening. He said BCUS is the purchasing agent for liability reasons and one is example you can take from that is Mare Island. The layers of companies protect Brookfield but leave Concord exposed.

Mr. Roden even advised you that Brookfield Properties will be creating yet another company for the DDA. Yes, it is common but the reason it is common is that Brookfield is placing a protective layer between itself and the project which Concord should not allow, especially if Concord deeds land to Brookfield for infrastructure instead of having Brook field lease the property (which Catellus had offered to do).

It's very unfortunate that Concord has the exact same staff who isn't explaining this accurately this time around. Go back and look at minutes of the meetings from the Lennar ENA and you will see staff knows exactly what the above is referencing.

Hope Johnson

Concord Community Reuse Project
Concord Community Reuse Project
Exclusive Agreement to
Negotiate
Agenda Item 2 a. – September 19, 2023

Concord Community Reuse Project
Master Developer Selection Timeline
2 City Council discusses and provides direction on a new Master Developer Selection Process in a public meeting.

City Council reviews and approves the proposed Request for Qualifications and authorizes its release in a public meeting.

Request for Qualifications is released.

Two respondents submit Statements of Qualifications (SOQs) LRA Team prepares Summary Table
Selection information for each respondent is released to City Council and public.

Housing America Partners withdraws their SOQ.

City Council interviews Brookfield in a public meeting and directs staff to negotiate an ENA with them.

March 14, 2023
May 9, 2023
May 15, 2023
July 14, 2023
August 11, 2023
August 14, 2023
August 26, 2023

Concord Community Reuse Project
ENA Consideration and Next Steps
3 Agenda Packet including staff report, adopting resolution and proposed ENA was released to the City Council and public.

City Council considers the proposed ENA with BCUS Acquisitions LLC (Brookfield) in a public meeting.

Brookfield prepares conceptual land and financial plans to support proposed Term Sheet.

City Council considers the conceptual plans and decides whether to accept the proposed Term Sheet in public meetings.

Brookfield prepares and LRA Team reviews Specific Plan, Environmental Impact Report, Disposition & Development Agreement and other entitlement documents.

City Council considers the Environmental Impact Report, Specific Plan, Disposition & Development Agreement and other entitlement documents in a public meeting.

September 14, 2023
September 19, 2023
Next Steps
120 days
November 2023
January 2024
24 months
January 2026

Exclusive Negotiating Agreement with Brookfield
ENA Land-use
Plan
Pro-
forma
$$
Term
Sheet
EIR
Specific Plan
Pro-
forma
$$
DDA/DA
September 2023
120 Days
January 2024
January 2026
24 Months
Clears
Conceptual
Mitigation $
Benefits $
Costs $
Term Sheet and Conceptual documents
provide guidance to the drafting of the
SP , EIR, and DDA/DA, and Area Plan
Amendment which will document
community benefits.

City/Navy
Payment $
Developer
Profit $
Navy wants to see near final version of
the Pro-forma before agreeing to the final
terms of any EDC Agreement.

EDC
Agreement
w/Navy
Legend
ENA – Exclusive Negotiating Agreement
Land-use Plan – Uses, sq. ft., units, density
Pro-forma – Financial Plan
Term Sheet – Preliminary Deal Points
EIR – Environmental Impact Report
Specific Plan – Zoning, Design, Infrastructure
Area Plan Amendment – General Plan Changes
DDA – Disposition & Development Agreement
DA – Development Agreement
EDC – Economic Development Conveyance = City Council/LRA Decisions September 19, 2023
Area Plan
Amendment
4

Concord Community Reuse Project
Key Components of the ENA
5 1. The LRA is offering Brookfield the rights to the entire Economic Development Conveyance of approximately 2,350 acres subject to terms of the ENA and subsequent agreements.

2. The Negotiating Period consists of two stages:
a. A Preliminary Stage of 120 days to prepare conceptual plans in support of a Term Sheet addressing the matters described in Exhibit B and other matters agreed upon by the parties.

These plans and Term Sheet should be ready for Council review and acceptance in public meetings tentatively set for November 2023 and January 2024. b. A Disposition and Development Agreement (DDA) Stage of 24 months from Term Sheet acceptance to complete a Specific Plan, Environmental Analysis, and a Disposition & Development Agreement. These “entitlement” documents should be ready for Planning Commission and City Council consideration in January 2026. c. Both negotiation stage timeframes can be granted administrative extensions at the discretion of the LRA.

Concord Community Reuse Project
Key Components of the ENA
6 3. Brookfield agrees to provide a $250,0000 deposit to reimburse the city for the costs of negotiating the ENA and Term Sheet.

4. The ENA also obligates Brookfield to reimburse the LRA for costs related to the review and processing of the Specific Plan, Environmental Impact Report, and other project costs as outlined in a future administrative reimbursement agreement.

5. A prohibition of disparaging statements from key individuals at Brookfield and a definition of what is and what is not a disparaging statement.

6. A prohibition against the making of campaign contributions or the solicitation of campaign contributions from others by key individuals at Brookfield to candidates for City office or Councilmembers seeking other offices, or political action committees supporting or opposing those candidates during the term of the ENA.

7. The list of Preliminary Stage Negotiation Matters to be discussed for possible inclusion in the Term Sheet – Exhibit B.

Concord Community Reuse Project
Resolution – Surplus Land Act
7 In Section 3, the City Council finds that the Surplus Land Act contravenes Base Realignment and Closure Act (BRAC) requirements and is preempted by BRAC.

In Section 4, the City Council finds that even if the Surplus Land Act was not preempted by BRAC the property subject to the ENA is “exempt surplus land” as defined by the SLA based on the City’s adherence to required RFQ procedures and the project’s commitment to the provision of affordable housing.

Concord Community Reuse Project
Council Questions?
8

Concord Community Reuse Project
9