FIRST MINOR AMENDMENT TO
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS FIRST MINOR AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT (this "Amendment") is made in reference to that certain Disposition and Devel- opment Agreement between the City of Hercules ("City"), the City of Hercules Redevelopment Agency ("Agency"), and Hercules New Town Center, LLC ("Developer") dated as of April 7, 2005 (the "DDA"). This Amendment has been executed as of December 11, 2006 and shall be- come effective in accordance with Section 4.1 of this Amendment. This Amendment is also made in reference to the following:
RECITALS:
A. A primary reason for City and Agency to enter into the DDA was to facilitate the initial development of a mixed-use town center on either the parcel identified in the DDA as the "PNR Parcel" or the parcel identified in the DDA as the "C-1 Parcel." Agency and City recog- nized that such a mixed-use development is "ahead of market" for its location and that Agency and City must offer financial assistance through the DDA in order to bring the mixed-use town center to fruition. The DDA refers to the parcel that is to receive the initial town center develop- ment as the "Primary Parcel." If Agency timely consummates its contemplated land exchange with BART, the PNR Parcel will be the Primary Parcel; otherwise, the C-1 Parcel will be the Primary Parcel.
B. The DDA was approved by Agency and City on March 8, 2005 and has a stated ef- fective date of April 7, 2005. As a consequence of a number of circumstances, including a long delay in the signing of an Exchange Option Agreement between Bay Area Rapid Transit District ("BARTD") and City and Agency, which delay in turn caused a lengthy delay in the signing of the DDA itself, one of the members of Developer's LLC, The Surland Companies ("Surland") requested to be bought out. Developer aggressively sought a new investor for the project and was successful in executing a letter of intent with a funding source. Given current market conditions, it is the opinion of City, Agency, and Developer that finding a single builder or investor to fund the entire mixed-use project contemplated by the DDA would be difficult and would result in significant additional project delays.
C. City, Agency, and Developer agree that a sound strategy for the development of the Primary Parcel (as defined in the DDA) as a mixed-use town center, as envisioned by City and Agency, is to use funds advanced by Agency to (i) buy out Surland, (it) pay off accumulated un- funded third-party costs, (iti) design the project in a manner that meets the expectations of City and Agency, and (iv) obtain full project entitlements. The budget for these items is Three Million Five Hundred Thousand Dollars ($3,500,000) (the "Maximum Advance Amount"). Following entitlement, Developer can sell parcels to builders based on their specialties: residential, office, and retail. The funds provided by Agency would be an advance on funds already contemplated in the DDA as part of the project financial assistance for the mixed-use town center project on the Primary Parcel. In exchange for the Agency's advancing such funds, Developer would provide Agency financial participation in the project in the form of interest on the advances plus a share in revenues. This Amendment is intended to effectuate such an arrangement.
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D. Under Section 7.8.1 of the DDA, "The City Manager or his designee, along with the Agency Director [Executive Director of Agency] or his designee, shall have the authority to re- view and approve Minor Amendments to this Agreement requested by Developer." Based on the content of this Amendment and the definitions of "Minor Amendment" and "Major Amendment" in the DDA, the undersigned City Manager and Executive Director of Agency finds that this Amendment qualifies as a Minor Amendment under the DDA.
E. The funds to be provided by Agency under this Amendment shall be in the form of an advance of funds that the DDA requires Agency to provide to Developer, upon the satisfaction of certain conditions, in the form of a cost reimbursement fund identified in the DDA as the "Primary Project Fund." The size of the Primary Project Fund will be established under Section
4.2.1.1 of the DDA based on a set of three factors, including a maximum cap of Twelve Million Dollars ($12,000,000). The undersigned City Manager and Executive Director of Agency finds that, although the size of the Primary Project Fund could be less than the maximum, it is very unlikely that it would be less than the Maximum Advance Amount plus the interest on such amount contemplated in this Amendment.
F. Subsequent to the approval of the DDA, four letter agreements were entered into between City and/or Agency and Developer, dated April 15, 2005 (regarding "Agreement Re- garding Exchange Agreement Closing Costs"), April 18, 2005 (regarding "Understanding Re- garding DDA Schedule"), August 26, 2005 (regarding "Hercules New Town Center DDA"), and February 15, 2006 (regarding "Project enhancement and work product buy-out agreement related to [the DDA]"), respectively (the "Side Agreements"). The parties hereto desire to incorporate relevant terms of the Side Agreements into this Amendment, as well as modify or render inef- fective other terms of the Side Agreements, and cause this Amendment to supersede all of the Side Agreements.
NOW, THEREFORE, in consideration of the foregoing, the covenants and obligations hereinafter set forth, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree that the DDA is hereby amended as follows:
Section 1: Definitions
As the context permits, and except as otherwise specifically defined in this Amendment to the contrary, capitalized terms in this Amendment shall have the meaning ascribed to them in the DDA. The following terms are defined for purposes of the Amendment as indicated:
"Advance Funds" means funds drawn by Developer and funded by Agency as advances on the Primary Project Fund as described in Section 2 of this Amendment. "Agency Counsel" means Alfred Cabral, Esq.
"Agency Participation Closing" means the completion of the transfer of the Surland Buy-Out Amount to Red Barn and the delivery of all Closing Documents that are identified on Exhibit "E" under the headings, "Agency Participation Closing Documents" and "Joint Closing Document."
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"Amendment" means this First Minor Amendment to Disposition and Development Agreement by and between Agency and City, on the one hand, and Developer, on the other hand. "Amendment Effective Date" means that date on which this Amendment becomes effec- tive pursuant to Section 4.1 of this Amendment.
"BART Exchange" means the exchange of the PNR Parcel and the C-1 Parcel between BARTD and Agency pursuant to that certain Exchange Option Agreement dated as of April 10, 2006 between BARTD and Agency.
"BART Parking Project' means the project of developing parking on the C-1 Parcel to replace the BART "Park & Ride" facilities that currently exist on the PNR Parcel. "BART Parking Submittal Package" means, with respect to the BART Parking Project, the following proposed documents: (i) a zone change and (ii) a general plan amendment (if re- quired to cause the City's general plan to be consistent with the proposed zoning). Notwith- standing the foregoing, City may, in its discretion, elect to modify or entirely change the required elements of the BART Parking Submittal Package in order to facilitate accelerated processing of the approval thereof.
"BART Pre-Exercise Conditions" means BARTD's conditions precedent to the comple- tion of the BART Exchange set forth as Sections 7.1.1, 7.1.2, 7.1.3, and 7.1.4 of the Exchange Option Agreement. Under the terms of the Exchange Option Agreement, each of the BART Pre- Exercise Conditions (i) must be satisfied, or waived by BARTD, prior to the exercise of the Ex- change Option and (ii) requires action by City and/or Agency for its satisfaction. "Budget" means the "Budget for Expenditure of Advance Funds" attached hereto as Ex- hibit "A."
"Closings" means the completion of the following transactions through the Escrow (i) the Agency Participation Closing and (ii) the completion of the buy-out of Surland's interest in De- veloper in accordance with the Surland Buy-Out Documents. "DDA" means that certain Disposition and Development Agreement between the City of Hercules, the City of Hercules Redevelopment Agency, and Hercules New Town Center, LLC dated as of April 7, 2005.
"Escrow" means an escrow opened by the parties hereto and Surland with a mutually ac- ceptable escrow agent for purposes of completing the Closings. "Escrow Instructions" means escrow instructions to the escrow agent for the Escrow that are substantially consistent with this Amendment, including any reasonable standard instruction:
required by such escrow holder. The Escrow Instructions shall call for the delivery into the Es crow and the distribution out of escrow of all funds and documents required to effectuate the Closings. The Escrow Instructions shall call specify a scheduled closing date that is the carliest date upon which the parties to the Escrow Instruction mutually agree.
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Submittal Package shall be an application for zoning and general plan amendment. The Initial C- 1 Submittal Package shall propose zoning under the City's Planned Development Plan ordinance that specifies land use elements, minimum and maximum program parameters, and certain de- velopment standards. Such proposed zoning shall not integrate approval of a site development plan, subdivision plan, and design review plan into the zoning, but rather shall establish that the City must review and consider such items as conditions of tentative map approval. "Maximum Advance Amount' means Three Million Five Hundred Thousand and no/100 Dollars ($3,500,000.00).
"Past Unfunded Costs" means those third-party costs incurred to benefit the develop- ment of the Primary Parcel prior to the Amendment Effective Date and not funded by Surland, as itemized on Exhibit "B" hereto. The Past Unfunded Costs include amounts advanced by Devel- oper or its affiliates and amounts owed to third parties and not yet paid. "PNR Submittal Package" means Primary Submittal Documents and Design Submittal Documents for a Project on the PNR Parcel, submitted as one combined package. "Primary Parcel Work Product" means all third-party work product that is under Devel- oper's possession or control related to the PNR Parcel, the C-1 Parcel, or the processing of the Primary Project Approvals, including, without limitation, work product related to site assess- ment; planning; design; engineering; architecture; entitlement; environmental studies; CEQA document preparation; general plan, zoning, PDP, and other applications to the City; and studies and other documentation related to other federal, state, or local governmental compliance. "Primary Project Approvals" means approval by City of all elements of the PNR Sub- mittal Package, the Initial C-1 Submittal Package, and the BART Parking Submittal Package, along with any other discretionary approvals required by City in connection with the construc- tion and use of the Project Improvements on the Primary Parcel. Notwithstanding the foregoing, (i) if the C-1 Parcel becomes the Primary Parcel prior to the completion of the Primary Project Approvals, then the Primary Project Approvals shall include approval of all elements of the Ini- tial C-1 Submittal Package as supplemented by the Supplemental C-1 Submittal Package and shall exclude approval of the PNR Submittal Package and the BART Parking Submittal Package, and (ii) if the PNR Parcel becomes the Primary Parcel prior to the completion of the Primary Project Approvals, then the Primary Project Approvals shall include approval of all elements of the PNR Submittal Package and the BART Parking Submittal Package and shall exclude ap- proval of the Initial C-1 Submittal Package.
"Primary Project Submittal Package" means a combination of the PNR Submittal Pack- age, the Initial C-1 Submittal Package, and the BART Parking Submittal Package. "Project General Manager" means the person designated from time to time by Devel- oper and approved by City and Agency to oversee the execution of Developer's responsibilities under the DDA, as modified by this Amendment and as may be further modified from time to time, with respect to the Primary Project Approvals. See Section 5.8 of this Amendment. "Red Barn" means Red Barn Communities Company, a California corporation doing business as "The Red Barn Co."
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"Side Agreements" mean those certain four letter agreements entered into between City and/or Agency and Developer, dated April 15, 2005 (regarding "Agreement Regarding Exchange Agreement Closing Costs"), April 18, 2005 (regarding "Understanding Regarding DDA Sched- ule"), August 26, 2005 (regarding "Hercules New Town Center DDA"), and February 15, 2006 (regarding "Project enhancement and work product buy-out agreement related to [the DDA]"). "Signature Date" means December 11, 2006.
"Supplemental C-1 Submittal Package" means a supplemental submittal to the Initial C- 1 Submittal Package sufficient to create a combined submittal package that includes all Primary Submittal Documents and all Design Submittal Documents for a Project on the C-1 Parcel. "Surland' means The Surland Companies, LLC, a California limited liability company. "Surland Buy-Out Documents" means an "Agreement Regarding Purchase of Member- ship Interest, Settlement and Mutual Release Agreement" whereby Surland agrees to transfer its interest in Developer to Red Barn, along with any and all other related documentation required by such agreement.
"Surland Buy-Out Amount"' means One Million Six Hundred Thousand and no/100 Dollars (S1,600,000.00).
"Surland Relinquishment Document" means a document executed by Surland in the form attached hereto as Exhibit "C," or in such other form that is reasonably acceptable to City and Agency, stating that Surland has sold its interest in Developer to Red Barn and retains no interest in Developer.
Section 2: Advances on Primary Project Fund
2.1. Advances on Primary Project Fund. Developer may draw, and Agency shall fund to Developer, Advance Funds up to the Maximum Advance Amount for the purposes and in accordance with the procedures set forth in this Section 2. The funding of each such raw shall be regarded as an advance funding of the Primary Project Fund contemplate n Section 4.2.1.1 of the DDA. Agency shall not be required to establish the Primar Project Fund as a separate escrow or depository for this purpose.
2.2. Permitted uses of Advance Funds. Advance Funds may be used by Developer only for the purposes itemized in the Budget. To the extent that any such purposes described in the Budget are more expansive than those permitted purposes described in the definition of Primary Project Fund in the DDA, the DDA is hereby amended to allow the use of the Maximum Advance Amount for all purposes described in the Budget.
2.3. Closing draw. Agency shall transfer the Surland Buy-Out Amount to Surland on behalf of Red Barn through the Escrow as part of the Agency Participation Closing in accor- dance with Section 4.5 of this Amendment. Such transfer shall be the first draw of Ad- vance Funds. The documentation required for such draw shall be (i) delivery to Agency of the Surland Relinquishment Document as part of the Agency Participation Closing and (ti) confidential delivery to Agency Counsel, in accordance with Section 5.9 of this First Minor Amendment to Disposition and Development Agreement Page 5 DDA First Min Amend 05.doc Printed: 12/11/06; 10:52 AM
Amendment, of the form of the Surland Buy-Out Documents, along with the right for Agency Counsel to inspect the final executed Surland Buy-Out Documents in accor- dance with Section 4.4 of this Amendment.
2.4. Past Unfunded Costs draw. Within five (5) business days after the Agency Participa- tion Closing, but in no event prior to January 1, 2007, Agency shall deliver to Developer a series of checks made to the parties and in the amounts itemized on Exhibit "B" in the total amount of Two Hundred Seventy-Two Thousand Eight Hundred Twenty-Seven and 98/100 Dollars ($272,827.98) to fund the repayment or reimbursement for the Past Un- funded Costs. This payment shall be the second draw of Advance Funds. Agency hereby acknowledges receipt from Developer of satisfactory documentation for such draw.
2.5. Procedure for additional draws. After the first and second draws described in Sections
4.3 and 2.4 ot this Amendment, Developer may request additional draws as follows, up to a cumulative maximum of One Million Six Hundred Twenty-Seven Thousand One Hundred Seventy-Two and 02/100 Dollars ($1,627,172.02) in additional draws:
2.5.1. Draw request. Developer shall submit to Agency a draw request that shall include (i) a list of costs that Developer has incurred for permitted pur- poses, as defined in Section 2.2 of this Amendment, (ii) copies of invoices, receipts, or other evidence reasonably satisfactory to Agency that a cost was incurred for each listed item (except the budgeted management fee, which is pre-agreed by this Amendment and requires no further evidence of incurrence), (iii) copies of cancelled checks, receipts from vendors, or other evidence reasonably satisfactory to Agency that prior invoice-based ad- vances were paid to vendors, and (iv) an estimate of the dollar amount that will be needed to complete the Primary Project Approvals after the re- quested draw amount has been advanced.
2.5.2. Agency review. Agency shall review each draw request as follows:
2.5.2.1. Item review. Agency shall approve each individual item contained within a draw request unless either: (i) the item is not for a permitted purpose, (ii) the draw request includes no invoice, receipt, or other reasonably satisfactory evidence that Developer incurred the expense (Developer need not have paid the item, but must have become obligated to pay it), or (iii) payment of the item would cause the Maximum Advance Amount to be exceeded.
2.5.2.2. General review. Agency may, in its discretion, disapprove an entire draw request if Agency determines, in its reasonable judgment, that either (i) there are insufficient funds available to complete the Primary Project Approvals, taking into ac- count unused portions of the Maximum Advance Amount
and other resources not under Agency's control that Agency is aware are available to Developer; (ii) Agency determines, in Agency's reasonable discretion, that Developer is not First Minor Amendment to Disposition and Development Agreement Page 6 DDA First Min Amend 05. doc Printed: 12/11/06; 10:52 AM making sufficient progress toward obtaining the Primary Project Approvals as a result of Developer's failure to timely perform its obligations under the DDA, as modified hereby; or (iti) Developer has failed to provide copies of cancelled checks, receipts from vendors, or other evidence reasonably satisfactory to Agency that prior invoice-based advances were paid to vendors (allowing reasonable amounts of time for payments to be made by Developer and cancelled checks or other evidence of payment to be returned to Developer).
2.5.2.3. Approval or notice of disapproval. Within ten (10) days after it receives a draw request, Agency shall determine, in accordance with this Section 2.5.2, whether it approves the request in full, disapproves it in full, or approves it in part and disapproves it in part. In the event of any disapproval, Agency shall notify Developer of the same by facsimile on or before the tenth (10th) day after receiving the draw request, along with a description of corrective action that Agency will accept in order to give its approval.
2.5.2.4. Response to corrective action. Within five (5) business days after Developer takes corrective action in response to an Agency disapproval under this Section 2.5.2 and notifies Agency of such action, Agency shall respond by facsimile, by either approving the previously disapproved item (s) or by providing an explanation for Agency's continuing disap- proval.
2.5.3. Timing of advances. Agency shall advance requested funds to Developer within ten (10) days after the date that Agency approves a draw request or any portion thereof under Section 2.5.2.3 or 2.5.2.4 of this Amendment.
Agency shall advance funds in the approved amount either by mailing a check to Developer or, at Developer's request, by wire transfer.
2.5.4. Developer use of Advance Funds. Developer shall be entitled to use Ad- vance Funds only for the purpose for which such funds were requested. In the event that Developer does not use certain Advance Funds for the pur- pose requested, Developer shall return such Advance Funds to Agency.
2.6. Reconciliation of Primary Project Fund. At such time as Agency is obligated to es- tablish the Primary Project Fund pursuant to Section 4.2.1.1 of the DDA, the amount that Agency is obligated to deposit into the Primary Project Fund shall be reduced by the the aggregate amount of the Advance Funds that were advanced pursuant to Section 2 of this Amendment and which Developer did not voluntarily repay pursuant to Section 3.2 of this Amendment.
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Section 3: Agency Participation
3.1. Consideration for Primary Project Fund advances. In consideration for making ad- vances on the Primary Project Fund in accordance with Section 2 of this Amendment, Developer shall pay Agency interest and a share in revenues from the Project on the Primary Parcel as provided in this Section 3.
3.2. Interest on Advance Funds. Interest shall accrue to Agency on outstanding Advance Funds at the rate of 8% per annum, compounded monthly. Developer shall pay Agency all such accrued interest on or before the date that is twenty-four (24) months after the Amendment Effective Date. Developer may, in its sole and absolute discretion, repay to Agency, in whole or in part and without penalty, the amount of the Advance Payments made to Developer under Section 2 of this Amendment together with all accrued interest as of the date of prepayment. If the Primary Project Approvals are not complete on or before the date that is twenty-four (24) months after the Amendment Effective Date at no fault of Developer, then the due date for the interest under this Section 3.2 shall be ex- tended to the Closing Date for the transfer of the Primary Parcel to Developer.
3.3. Residential revenue participation. In addition to the revenue participation set forth in Section 4.4.2 of the DDA, for every for-sale residential unit sold on the Primary Parcel, Developer or its successors) in interest shall pay to Agency, upon the close of escrow for the sale of each such unit, the sum of $20,000.
3.4. Commercial revenue participation. Developer and its successors in interest shall also pay to City, annually on or before each January 31st, the following amounts: (i) on leas- able commercial space in the Primary Project that does not produce sales tax revenue, Developer and its successors shall pay the City an amount equal to eight percent (8%) of the aggregate gross rent on such space for the prior calendar year; (ii) on leasable com- mercial space in the Primary Project that produces sales tax revenue, Developer and its successors shall pay the City an amount equal to eight percent (8%) of the aggregate gross rent on such space for the prior calendar year minus the aggregate sales tax reve- nue generated by the same space over the same period of time (but not less than zero).
Notwithstanding the foregoing, Agency shall receive no percentage of the rent on the first 10,000 square feet of leased office space.
Section 4: Agency Participation Closing
4.1. Amendment effective upon Agency Participation Closing. This Amendment was signed and delivered to the parties hereto on the Signature Date, but it shall not become effective until the date on which the Agency Participation Closing occurs. Upon the oc- currence of the Agency Participation Closing, this Amendment shall immediately be of full force and effect without further action by the parties hereto, so long as the Agency Participation Closing occurs within ninety (90) days of the Signature Date. In the event that the Agency Participation Closing occurs ninety (90) days or more after the Signature Date, this Amendment must be initialed and dated by each of the parties hereto as of the date of the Agency Participation Closing in order to become effective.
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4.2. Escrow For Agency Participation Closing. Following the Signature Date, the parties hereto shall open the Escrow with an escrow agent mutually acceptable to the parties hereto and to Surland. The parties hereto shall sign the Escrow Instructions, subject to the reasonable review of each party hereto. Developer shall use its best efforts to cause Surland to also sign the Escrow Instructions.
4.3. Closing Documents. The Escrow Instructions shall provide for the delivery of the Closing Documents in to Escrow and the distribution of the Closing Documents out of Escrow in accordance with Exhibit "E" hereto, as well as any other documents required under the Closing Documents or reasonably required by any party to the Escrow.
4.4. Inspection of Surland Buy-Out Documents by Agency Counsel. Agency Counsel shall be provided the opportunity to inspect the Surland Buy-Out Documents to confirm that they are the same in all material respects with respect to the interests of Agency as the form of such agreement provided to Agency Counsel under Section 5.9 of this Amendment. Upon completion of such review, Agency Counsel shall (i) return the cop- ies of the Surland Buy-Out Documents provided to him for inspection and (it) destroy all copies of the form of the Surland Buy-Out Documents in his possession or under his control.
4.5. Transfers of tunds. Agency shall arrange for the transfer of the Surland Buy-Out Amount to Surland on behalf of Red Barn on the date scheduled for the Closings. Such transfer shall be arranged by Agency in coordination with the agent handling the Escrow.
The closing statement for the Escrow shall reflect receipt of the Surland Buy-Out Amount by Red Barn from Agency for purposes of the Agency Participation Closing and by Surland from Red Barn for purposes of completing the buy-out of Surland's interest in Developer.
4.6. Recordation of Memorandum of Agreement. Section 7.4 of the DDA is hereby super- seded in its entirety with the following provisions of this Section 4.6: Agency shall cause the Memorandum of Agreement, in substantially the form attached to the DDA as Ex- hibit "D," to be recorded against the C-1 Parcel only within ten (10) days after the date of the Agency Participation Closing. The Memorandum of Agreement shall be senior to any and all mortgages and deeds of trust to be recorded against the C-1 Parcel, including any deeds of trust or mortgages securing repayment of Developer's land acquisi- tion/construction loans. The form of Memorandum of Agreement set forth as Exhibit "D" of the DDA is hereby amended such that only the Assessor's Parcel Number of the C-1 Parcel, and not the Assessor's Parcel Number for any of the other Subject Parcels, shall be listed above the title of the document.
Section 5: Additional Provisions and Amendments
5.1. Minimum program for Primary Parcel. Notwithstanding anything to the contrary in the DDA, the PNR Submittal Package, the Initial C-1 Submittal Package, and the Sup- plemental C-1 Submittal Package shall each propose a program that meets the following minimum requirements:
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(a) 300,000 sq. ft. minimum building size;
(b) 96,000 sq. ft. minimum commercial use, including at least 56,000 sq. ft. retail; (c) Majority of parking structured, but no required "podium" or below-ground parking; and
(d) Public "town square" of at least 10,000 sq. ft.
The foregoing shall only apply to submittals related to the development of the PNR Par- cel or the C-1 Parcel as the Primary Parcel. The required scope of development for the PNR Parcel or the C-1 Parcel as the BART Residual Parcel shall be governed by Section
3.1.1 of the DDA and Exhibit "F" of the DDA.
5.2. Processing of Primary Project Approvals. Notwithstanding anything to the contrary in the DDA, the Primary Project Approvals shall be processed as follows, all in accordance with the Primary Project Schedule:
5.2.1. Permit application. Developer shall submit the Primary Project Submittal Package to City.
5.2.2. Permit processing. Except as otherwise provided in Sections 5.2.3 through
5.2.5 of this Amendment, City shall process the components of the Primary Project Submittal Package together as one approval package.
5.2.3. C-1 Parcel as Primary Parcel. If the C-1 Parcel becomes the Primary Par- cel pursuant to the terms of the DDA prior to completion of the Primary Project Approvals, then (i) City and Developer shall abandon the process- ing of the PNR Submittal Package and the BART Parking Submittal Pack- age, (ii) Developer shall submit the C-1 Supplemental Submittal Package, and (iii) City shall process the combination of the Initial C-1 Submittal Package and the C-1 Supplemental Submittal Package together as one ap- proval package.
5.2.4. PNR Parcel as Primary Parcel. If the PNR Parcel becomes the Primary Parcel pursuant to the terms of the DDA prior to completion of the Primar Project Approvals, then (i) City and Developer shall abandon the process- ing of the Initial C-1 Submittal Package, and (ii) City shall continue to process the PNR Submittal Package and the BART Parking Submittal Package together as one approval package.
5.2.5. Accelerated processing of the BART Parking Project. Notwithstanding Sections 5.2.2 and 5.2.4 of this Amendment, City may at any time elect, in its sole and absolute discretion, to accelerate the processing of the BART Parking Submittal Package ahead of the other submittals made by Devel- oper.
5.3. BART closing costs. Developer shall pay all ordinary closing costs of both BARTD and the Agency related to the BART Exchange provided that:
First Minor Amendment to Disposition and Development Agreement Page 10 DDA First Min Amend 05. doc Printed: 12/11/06; 10:52 AM (a) The DDA is in full force and effect as of the date of the BART Exchange with re- spect to the PNR Parcel;
(b) Agency is prepared to convey to Developer the PNR Parcel immediately after the closing of the BART Exchange in accordance with Section 2.4 of the DDA; (c) Agency agrees to use the same escrow and title company to close the disposition of the PNR Parcel to Developer as the Agency and BARTD use to close the BART Exchange;
(d) Agency cooperates with Developer to minimize redundant escrow, title, and otber closing costs with respect to the disposition of the PNR Parcel to Devel- oper; and
(e) Such closing costs shall exclude any brokerage commissions, finance-related costs, costs related to the discharge of liens or encumbrances on either parcel, and any other extraordinary costs.
5.4. Removal of "zero assistance option" on Primary Parcel. The City's and Agency's "zero assistance option" pursuant to Section 4.2.4 of the DDA shall not be available with respect to a Project on the Primary Parcel.
5.5. Primary Parcel Schedule of Performance. Notwithstanding anything to the contrary in the DDA, the Schedule of Performance for the Project on the Primary Parcel shall be as set forth on Exhibit "D" hereto. Such schedule intentionally (i) integrates the schedules for the PNR Parcel as the Primary Parcel and the C-1 Parcel as the Primary Parcel, (ti) removes the Conceptual PDP step from the process because it has already been com- pleted for the PNR Parcel and shall not be required for the C-1 Parcel, (iii) combines the processing of Primary Submittal Documents and Design Submittal Documents, (iv) in- cludes processing of the Initial C-1 Submittal Package and the BART Parking Submittal Package simultaneously with the processing of the PNR Parcel Submittal Package, (v) incorporates the steps required to complete the BART Exchange, and, in conjunction with Section 5.2 of this Amendment, (vi) requires the abandonment of the processing of irrelevant approvals once the Primary Parcel has been identified. The Schedule of Per- formance for the PNR Parcel or the C-1 Parcel as the BART Residual Parcel shall be governed by Exhibit "E-4" of the DDA and not by this Section 5.5.
5.6. General Schedule of Performance. City, Agency, and Developer each waives the tim- ing requirements of the "General Schedule of Performance" set forth on Exhibit "E-1" of the DDA.
5.7. BART Pre-Exercise Conditions. Section 7.1 of the Exchange Option Agreement in- cludes twelve conditions precedent on behalf of BARTD which must be either satisfied or waived for the BARI Exchange to occur. Among these are the BART Pre-Exercise Conditions. Under the DDA, the responsibility for satisfying all of BARTD's conditions precedent, including the BART Pre-Exercise Conditions, is with the City/Agency. The parties hereto now agree that, although responsibility for meeting such conditions shall remain with the City/Agency, Developer shall assist City/Agency with the satisfaction of First Minor Amendment to Disposition and Development Agreement Page 11 DDA First Min Amend 05.doc Printed: 12/11/06; 10:52 AM
the BART Pre-Exercise Conditions by (i) preparing or having prepared the BART Park- ing Submittal Package and (ii) providing project management services to City/Agency to contract with, direct, and oversee the work of third-party contractors to prepare docu- ments, prepare other work product, and perform other actions with respect to the BART Pre-Exercise Conditions. Funding for such third-party work shall be from the Budget so long as the amounts remain reasonable in relationship to all of the work required to process the Primary Project Approvals. Developer shall charge no additional manage- ment fee for the services it provides pursuant to this Section 5.7.
5.8. Project General Manager. It is of paramount concern to City and Agency that Devel- oper has in place a manager who is satisfactory to City and Agency for purposes of man- aging Developer's responsibilities with respect to the Primary Project Approvals. To ad- dress this concern, Developer shall designate a Project General Manager from time to time in accordance with the following:
5.8.1. Designation of initial Project General Manager. Developer hereby des- ignates, and City and Agency hereby approve, Thomas J. Weigel as the in1- tial Project General Manager.
5.8.2. Replacement of Project General Manager. If the initial or any subse- quent Project General Manager becomes unavailable to serve in such ca- pacity, then the following provisions shall apply:
5.8.2.1. Proposal of replacement Project General Manager. De- veloper shall promptly propose a replacement Project Gen- eral Manager for Agency to approve or disapprove in its ab solute discretion. In the event of Agency's disapproval of a proposed replacement Project General Manager, then Devel- oper shall promptly propose a second candidate. If Agency also rejects the second candidate, then Developer may either ontinue to propose candidates for Agency's consideration o equire Agency to propose two (2) candidates for Devel
oper's approval in its absolute discretion.
5.8.2.2. Resolution in event of failure to agree. If using the proce- dure set forth in Section 5.8.2.1 of this Amendment, Devel- oper and Agency have not, for any reason, agreed upon a re- placement Project General Manager within ninety (90) days following the previous Project General Manager's becoming unavailable to serve, then either Developer or Agency may initiate the following process as the initiating party:
5.8.2.2.1. Meet and confer. The initiating party shall give written notice to the other party explaining each
of its recommendations and/or rejections of pro-
posed replacement Project General Managers
during the process described in Section 5.8.2.1 of
this Amendment and advising the other Party that
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it desires to meet and confer. Within fifteen (15)
days after provision of that written notice by the
Party desiring to meet and confer, the primary
contacts for each Party shall meet in person and
attempt to amicably select a replacement Project
General Manager. Each primary contact, or the
duly authorized person acting in their absence,
shall attend the meeting, shall have full authority
to resolve the disagreement, and shall be pre-
pared to devote an entire day thereto. If the dis-
agreement remains unresolved at the end of the
meeting, any Party to this Agreement shall have
the right to invoke the mediation process pro-
vided for in Section 5.8.2.2.2 of this Amend-
ment.
5.8.2.2.2. Mediation. Any disagreement that remains unre- solved after the meet and confer described in
Section 5.8.2.2.1 of this Amendment shall im-
mediately be submitted to non-binding, neutral
mediation before a mutually acceptable, neutral
retired judge or justice at JAMS. It within five
(5) days after the meet and confer the parties are
unable to agree upon the selection of a neutral
mediator, then the first available retired judge or
justice at JAMS shall serve as the neutral me-
diator. The parties agree to dedicate at least one
full day to the mediation process. Each primary
contact, or the duly authorized person acting in
their absence, shall attend the mediation and
shall have full authority to resolve the disagree-
ment. Additionally, to expedite the resolution of
any disagreement that is not resolved by media-
tion, the parties agree to each bring to the neutral
mediation a list of at least five (5) neutral arbi-
trators, including their resumes, whose availabil-
ity for an arbitration hearing within fifteen (15)
days after the mediation has been confirmed.
5.8.2.2.3. Arbitration. If mediation is unsuccessful, then before the mediation concludes, the parties shall
mediate the selection of a neutral arbitrator to as-
sist in the resolution of their dispute. If the Par-
ties are unable to agree on an arbitrator, the Par-
ties agree to submit selection of an arbitrator to
the mediator, whose decision shall be binding on
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the parties. In that case, the mediator shall select
one neutral arbitrator from the then active list of
retired judges or justices at JAMS. The arbitra-
tion shall be conducted pursuant to the provisions
of the California Arbitration Act, Sections 1280-
1294.2 of the California Code of Civil Procedure.
In such case, the provisions of Code of Civil
Procedure Section 1283.05 and 1283.1 shall not
apply, and no discovery shall be permitted except
upon leave of the assigned arbitrator.
5.8.2.3. Replacement after Primary Project Approvals. Subse- quent to the completion of the Primary Project Approvals, Developer may replace the Project General Manager from
time to time without approval by City or Agency.
5.8.3. Adequate devotion of time. Developer shall cause the Project General Manager to devote such time and attention to the Project on the Primary Parcel as is necessary to effectively oversee the execution of Developer's responsibilities under the DDA and this Amendment with respect to the Project on the Primary Parcel.
5.8.4. Key person insurance. In order to ensure that adequate resources are available to hire and retain a replacement Project General Manager in the event that Thomas J. Weigel dies prior to completion of the Primary Project Approvals, Agency and Developer shall each take out a five-year life in- surance policy on the life of Mr. Weigel in the amount of One Million Dollars ($1,000,000). In the event of Mr. Weigel's death prior to comple tion of the Primary Project Approvals, Agency and Developer may each apply the proceeds of their respective policies in any manner they deen appropriate, in their own discretion, to offset the loss of Mr. Weigel. Th premium for such policies is included in the Budget.
5.9. Form of Surland Buy-Out Documents. The parties acknowledge that Developer has delivered to Agency Counsel a copy of the form of Surland Buy-Out Documents that Surland has approved and that Developer intends to execute at Closing. The parties fur- ther acknowledge and agree that such form of Surland Buy-Out Documents has been de- livered to Agency Counsel confidentially and shall not be made available to any other party. Agency Counsel may describe such form of agreement to Agency and City only in such a manner that does not make such form of agreement or the final executed Surland Buy-Out Documents subject to public disclosure. City and Agency agree to take all steps necessary to prevent both such form of agreement and the final executed Surland Buy- Out Documents from being disclosed to the public or from being required to be dis- closed to the public.
5.10. Tom Weigel indemnity. By his signature below, Thomas J. Weigel hereby agrees, in his individual capacity, to indemnify, defend, and hold harmless City and Agency from and First Minor Amendment to Disposition and Development Agreement Page 14 DDA First Min Amend 05.doc Printed: 12/11/06; 10:52 AM
against any loss, cost, or expenses that they may incur, including, without limitation, rea- sonable attorneys' fees, arising out of any claim of Surland, Les Serpa, or any of their af filiates with respect to the DDA, HNTC, or any of the Sub-ject Parcels. By his signature below, Thomas J. Weigel also guarantees, in his individual capacity, each and every one of the financial obligations of Developer hereunder.
Section 6: Additional Default Provisions
6.1. Schedule defaults. In addition to the remedies set forth in Sections 6.7 and 6.8 of the DDA, in the event of a substantial Schedule Default, a mediator may suggest or an arbi- trator may impose additional remedies to address the handling of outstanding Advance Funds and interest thereon in a manner that such mediator or arbitrator determines would be fair and equitable under the circumstances.
6.2. Default in the use of Advance Funds. Any substantial failure of Developer to properly use Advance Funds for the purpose for which such funds were requested shall be a mate- rial Default of the DDA and this Amendment. In the event of such a Default, as an addi- tional and cumulative remedy to any and all other remedies available to it under the DDA, Agency may discontinue making advances on the Primary Project Fund as pro- vided in this Amendment.
6.3. Payment defaults. Any failure of Developer to timely pay the amounts required under Section 3 of this Amendment shall constitute a Default under the DDA and shall be sub- ject to the terms of Article VI of the DDA.
6.4. Funding defaults. Any failure of Agency to timely fund draw requests in accordance with Section 2 of this Amendment when Agency has no permissible reason for disap- proving such draw request shall be both a general Default under the DDA, subject to the terms of Article VI of the DDA, and a Schedule Default under the DDA, subject to the additional terms related to Schedule Defaults under the DDA.
6.5. Agency right to work product. In the event of any uncured Default of Developer under the DDA or this Amendment such that Developer loses its right to acquire or hold the Primary Parcel, City may require, as an additional and cumulative remedy to any and all other remedies available to it under the DDA or this Amendment, to require Developer to transfer to City, to the extent legally transferable, possession, control, and ownership of all Primary Parcel Work Product. In such event, Developer shall sign all documents and take all other action reasonably necessary to promptly transfer all Primary Parcel Work Product to City.
Section 7: General Provisions
7.1. Notices. The addresses for notices pursuant to Section 7.1 of the DDA are hereby amended to read as follows:
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If to Agency:
Redevelopment Agency of the City of Hercules
111 Civic Center Drive
Hercules, CA 94547
Attn: Agency Directory
Fax: (510) 799-2521
with copy to:
Pelletreau, Alderson & Cabral
Plaza Two, Hilltop Office Park
3260 Blume Drive, Suite 410
Richmond, CA 94806
Attn: Alfred Cabral, Esq.
Fax: (510) 758-4921
If to City:
City of Hercules
111 Civic Center Drive
Hercules, CA 94547
Atta: City Manager
Fax: (510) 799-2521
with copy to:
Pelletreau, Alderson & Cabral
Plaza Two, Hilltop Office Park
3260 Blume Drive, Suite 410
Richmond, CA 94806
Attn: Alfred Cabral, Esq.
Fax: (510) 758-4921
If to Developer:
Hercules New Town Center, LLC
c/o The Red Barn Co.
2901 W. Coast Hwy, Suite 200
Newport Beach, CA 92663
Attn: Thomas J. Weigel
Fax: (949) 767-5646
with copy to:
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Todd G. Olson, Attorney at Law
7110 Brighton Park Drive
Suite 400, PMB 288
Charlotte, NC 28227
Fax: (413) 674-5911
7.2. Representations and warranties. Agency and City each represents and warrants to De- veloper, and Developer represents and warrants to Agency and City, that each of its rep- resentations and warranties set forth in Section 7.3 of the DDA remain true with respect to the DDA as modified by this Amendment.
7.3. Time; Parties; Interpretation. Each of the provisions contained in Sections 7.5 through
7.7 of the DDA, which relate to time, parties, and interpretation, shall apply to this Amendment in the same manner as they apply to the DDA and are hereby incorporated herein by this reference, saving only Section 7.7.3 of the DDA, which is replaced by Section 7.4 of this Amendment for purposes of this Amendment.
7.4. Entire agreement. This Amendment includes pages 1 through 20 and Exhibits "A" through "E," which constitute the entire understanding and agreement of the Parties with respect to Amending the DDA as of the Signature Date. This Amendment integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all ne- gotiations or previous agreements between the Parties or their predecessors in interest with respect to all or any part of the subject matter hereof, including, without limitation, the Side Agreements.
7.5. Effect of section numbering. The section numbers of this Amendment are not intended to correspond with similar section numbers contained in the DDA. The numbering of any section of this Amendment with a number that matches a section number in the DDA is coincidental and shall not, by virtue of the matching section number, have the ef- fect of amending or replacing the section of the DDA that has the matching section num- ber.
7.6. Eitectiveness of the DDA. The parties hereto acknowledge and agree that, except as modified by this Amendment, the DDA is in full force and effect in accordance with its terms as of the Amendment Effective Date. The parties further acknowledge and agree that as of the Amendment Effective Date, Surland is not a member of Developer, its sig- nature is not required on the DDA, and the DDA is in effect notwithstanding the lack of Surland's signature on the DDA.
7.7. Counterparts. This Agreement may be signed in counterparts, and is executed in three (3) duplicate originals, each of which is deemed to be an original.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the Ef- fective Date.
"Agency":
CITY OF HERCULES REDEVELOPMENT AGENC
By: pistaci Sikamo, Exculive Daise
"City":
THE CITY OF HERCULES
By: X-
Michael A. Sakamoto, City Manager-
"Developer":
HERCULES NEW TOWN CENTER, LLC,
a California limited liability company
By: RED BARN COMMUNITIES COMPANY,
a California corporation,
its Manager
By:
Thomas I. Weigel, President
THOMAS J. WEIGEL,
an individual
Thomass. Weigel
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Personal Guarantee of Thomas J. Weigel
THIS GUARANTEE (this "Guarantee") is made as of the effective date of the First Mi- nor Amendment to which this Guarantee is attached by the undersigned, Thomas J. Weigel ("'Guarantor"), in favor of the City of Hercules Redevelopment Agency ("Agency"). As the con- text permits, and except as otherwise specifically defined in this guarantee to the contrary, capi- talized terms in this guarantee shall have the meaning ascribed to them in the First Minor Amendment to Disposition and Development Agreement to which this guarantee is attached.
IN CONSIDERATION OF Agency extending funding from time to time to Developer in accordance with the DDA, as modified by the Amendment, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Guarantor personally guarantees the Amendment (the "Obligations") and under the following terms and conditions:
Guarantor guarantees that Developer will promptly pay the full amount of principal and interest of the Obligations as and when the same will in any manner be or become due, according to the terms and conditions provided by the Amendment.
2. Agency may grant extensions of time or other indulgences and otherwise deal with De- veloper and with other parties and securities as Agency may see fit without in any way limiting or lessening the liability of the Guarantor under this Guarantee.
3. This Guarantee is for the use and benefit of Agency.
4. The liability of Guarantor will continue until payment is made of every obligation of De- veloper now or later incurred in connection with the Obligations and until payment is made of any loss or damage incurred by Agency with respect to any matter covered by this Guarantee.
Guarantor represents that at the time of the execution and delivery of this Guarantee nothing exists to impair the effectiveness of this Guarantee.
All of Agency's rights, powers and remedies available under this Guarantee and under any other agreement in force now or anytime later between Agency and the Guarantor will be cumulative and not alternative and will be in addition to all rights, powers, and remedies given to Agency by law or in equity.
7. This Guarantee is made pursuant to the laws of the State of California.
The invalidity or unenforceability of any one or more phrases, sentences, clauses, or sec- tions in this Guarantee will not affect the validity or enforceability of the remaining por- tions of this Guarantee or any part of this Guarantee.
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9. No alteration or waiver of this Guarantee or of any of its terms, provisions, or conditions will be binding upon Agency unless made in writing over the signature of Agency or its
10. Any notice to be given to the Guarantor may be sent by mail, telephone, fax, email or otherwise delivered to Thomas J. Weigel, 2901 W. Coast Hwy, Suite 200, Newport Beach, CA 92663; fax: (949) 767-5646.
IN WITNESS WHEREOF, Guarantor has duly affixed its signature under hand and seal on this 11th day of December, 2006.
SIGNED, SEALED, OR ATTESTED
in the presence of:
faria.weni
Witness
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Exhibit "A"
Budget for Expenditure of Advance Funds
Purpose Amount Timing of Advance
Payment of Surland Buy-Out $1,600,000.00 Date of Agency Participation Amount to Surland to facilitate Closing
Surland buy-out by Red Barn
Past Unfunded Costs 272,827.98 Within 5 business days after Agency Participation Closing
Red Barn management fee 350,000.00 $19,444.44 on the first day of each month following Agency
Participation Closing for 18
Costs related to the Primary Pro- 1,277,172.02 As incurred over approximately ject Approvals, including costs of: 16-24 months during the proc • Site assessment and constraints essing of the Primary Project analysis Approvals and properly drawr
• Pinning, design, architecture & en- in accordance with the proce dures set forth in Section 2.5 of
• Preparation of development applica- this Amendment
tions
• Third-party costs related to meeting
BART Pre-Exercise Conditions
• Communications with City, Agency,
and other governmental officials
• Labor relations
• Environmental studies and reports
for state and federal environmental
compliance
• Other studies and documentation for
purposes of federal, state, or local
governmental compliance
• Legal fees related to the above items
• Travel and other reasonable out-of-
pocket expenses of third-party con-
sultants and Developer's staff
• The premium for the key-person life
insurance policies required by Sec-
tion 5.8.4 of this Amendment
Total $3,500,000
Exhibit "A"-Budget for Expenditure of Advance Funds Page A-1 DDA First Min Amend 05.doc Printed: 12/11/06; 10:52 AM
Exhibit "B"
Past Unfunded Costs
Invoice Payee
Payee Task Date Amount Total
Urban Design Associates Reimbursement 11/8/05 $ 215.41
707 Grant Street, 31st Floor Vision Plan 11/8/05 25,000.00 Pittsburgh, PA 15219 Reimbursement 6/21/06 1,421.55
(412) 263-5200 Vision Plan 6/21/06 26,700.00
Vision Plan 6/21/06 3,300.00 $ 56,636.96
Field Paoli Vision Plan 7/15/05 $ 60.64
150 California Street, 7th Floor Vision Plan 7/15/05 7,722.38 San Francisco, CA 94111 Vision Plan 8/10/05 636.13
(415) 788-6606 Vision Plan 2/9/06 15.59 $ 8,434.74
Todd G. Olson, Attorney at Law Legal docs 1/17/06 $ 19,310.70 7110 Brighton Park Drive Legal docs 4/4/06 17,958.08
Suite 400, PMB 288 Legal docs 5/1/06 9,649.17
Charlotte, NC 28227 Legal docs 9/12/06 49,917.95
(704) 780-1263 Legal docs 9/12/06 50,000.00 $ 146,835.90 Brian Kangas Foulk Base map 6/22/05 $ 4,974.00
2737 North Main, Suite 200 Base map 8/24/05 3,446.38 $ 8,420.38 Walnut Creek, CA 94597-2714
(925) 940-2200
U.S. Realty Capital Cap. procurement Closing $ 52,500.00 $ 52,500.00 3428 Via Lido
Newport Beach, CA 92663
(949) 723-7006
TOTAL $ 272,827.98
Exhibit "B"-Past Unfunded Costs Page B-1
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Exhibit "C"
Form of Surland Relinquishment Document
City of Hercules
11 Civic Drive
Hercules, CA 94547
Re: Hercules New Town Center, LLC (the "Company")
To whom it may concern:
Please be advised that effective _ 2006 [insert date of Agency Participation Closing] the undersigned, sold its entire membership interest in the Company to Thomas J. Weigel. Following such sale and as of said date, (i) the Company's only members are Thomas J. Weigel and Red Barn Communities Company ("Red Barn"); (ti) Red Barn is the sole manager of the Company; and (iti) The Surland Companies, LLC has no interest in (A) that certain Disposition and Devel- opment Agreement between the City of Hercules, the City of Hercules Redevelopment Agency, and Hercules New Town Center, LIC dated as of April 7, 2005, (B) the real estate development projects described in said Disposition and Development Agreement, or (C) Hercules New Town Center, LLC.
The Surland Companies
By:
Les Serpa, President
Exhibit "C"-Surland Relinquishment Document Page C-l
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Exhibit "D"
Primary Parcel Schedule of Performance
The Primary Parcel Schedule of Performance is as follows, subject to modification pursuant to the terms of Section 5.2 of this Amendment. For convenience of reference only, the "Code" col- umn identifies the category of each action as follows: APPL = preparation of the development ap- plication; BART = activities related to the BART Exchange; choA= compliance with the Califor- nia Environmental Quality Act; and APRY = hearings and actions on the development application for approval or disapproval.
Code Action Completion Date Resp. Party
APPL (a) Developer and Agency jointly prepare development 12/18/06 to 2/23/07 Developer & program and project description for Primary Project [10 weeks] City Submittal Package
APPL (b) Developer and Agency jointly prepare strategy for 12/18/06 to 2/23/07 Developer & compliance with all Governing Ordinances and all [10 weeks] City Laws that are applicable to the Project
BART (c) City or Agency undertakes to satisfy all BART Pre- 12/18/06 until com- City w/ De- Exercise Conditions with project management as- pletion of Primary veloper as- sistance from Developer Project Approvals sistance
[approximately 50
weeks]
CEDA (d) Following completion of (a) and (b) above, Agency 2/26/07 to 6/29/07 City w/ De- undertakes environmental studies and all other [18 weeks] veloper as- steps necessary to issue Draft EIR for public review sistance with project management assistance from Devel-
орет
APPL (e) Following completion of (a) and (b) above, Devel- 2/26/07 to 5/18/07 Developer & per and Agency jointly develop all components of [12 weeks] City he Primary Proiect Submittal Package
APPL (1) Following completion of (e) above, Developer and 5/21/07 to 6/15/07 Developer & [4 weeks] City
CEQA (g) Following completion of (d), Agency undertakes all 7/2/07 to 10/5/07 City w/ De- steps necessary to process the EIR from circulation [15 weeks] veloper as- sistance
Exhibit "D"- Primary Parcel Schedules Page D-1
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Code Action | Completion Date Resp. Party
BART (h) Developer, under the direction of City, prepares Approx. 8/27/07 to City w/ construction documents for the BART Parking Developer
assistance
the Primary Project
APRY (i) Following completion of (g), Planning Commission 10/8/07 to 11/2/07 City holds public hearing and votes to recommend, rec- [4 weeks] ommend with changes, or not recommend City
Council Approval of the Primary Project Submittal
Package
APRV (i) Following completion of (i, City Council holds 11/5/07 to 11/30/07 City ublic hearing and votes to approve or not approve [4 weeks] he Primary Project Submittal Packag
(k) Primary Project Approvals are complete following 12/3/07 to 12/28/07 City second reading of the ordinance(s) approving the 14 weeks] Primary Project Submittal Package and following
the expiration of the challenge period under CEQA
BART (I) Following completion of (c), Agency exercises the 12/28/07 City Exchange Option
BART (m) Following completion of (h), City issues building 12/31/07 to approx. City permits for BART Parking Project 1/25/08, but in any
event to be com-
pleted prior to the
scheduled closing
date of the BART
Exchange [4 weeks]
BART (n) Closing of BART Exchange 2/22/08 City
(o) Upon the later of (i) the closing of the BART Ex- 2/26/08 Agency and change under (n) above or (i) 60 days following Developer the completion of Primary Project Approvals under
(Ic) above, Closing occurs for the conveyance of the
Primary Parcel from Agency to Developer
Exhibit "D"— Primary Parcel Schedules Page D-2
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Exhibit "E"
Closing Documents
Agency Participation Closing Documents
Document Signing Parties Distribution
Disposition and Development City, Agency, HNTC City/Agency (2), HNTC (1) Agreement
Initial Parcel Pledge Agree- Agency, HNTC City/Agency (2), HNTC (1) ment
First Minor Amendment to Agency, City, HNTC, Weigel City/Agency (2), HNTC (1) Disposition and Development
Agreement
Surland Buy-Out Closing Documents
Document Signing Parties Distribution
Chase of Membership inter HINTC, Weigh, Suriand Red Barn (2), Surland (1) est, Settlement and Mutual
Release Agreement
Conveyance and Assumption Red Barn, Weigel, Serpa, Red Barn (2), Surland (1) Agreement HNTC, Surland
Joint Closing Documents
Document Signing Parties Distribution
Letter from Surland to City Surland City/Agency (1), HNIC (1), acknowledging the sale of Surland (1)
Surland's interest in HNTC
Closing Statement agent handling the Escrow HNTC (1), City/Agency (1), Surland (i); agent for Escrow
(1)
Exhibit "E"-. Closing Documents Page E-1
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