Ordinance 3078OF ~HnL"JLI£>.ORDINANCENO.3078
APPROVINGANDAUTHORIZINGAPURCHASEA.c1\JDSALEAGREEMENTWITHCATELLUS
ALAMEDARETAIL,LLCAl"lDJOINTESCROWINSTRUCTIONSFORSALEOFREMNANT
PARCEL
WHEREAS,CatellusAlameda ownscertainrealproperty,commonlyknown
as501-555Wilver"Willie"StargellAvenue,adjacenttothenewWilver"Willie"Stargell
Avenueintersectionwith and
WHEREAS,the
acres)locatedadjacentto
narrowstripoffrontagealong
ownsanirregularly-shapedRemnantParcel(0.34
'--'<1I'vHI.L~propertyonMarinerSquareLoopandextendingasa
StargellAvenue;and
WHEREAS,theRemnant
longerneededforthatpurpose;
isportionofformerroadrights-of-way,andisno
WHEREAS,the CaliforniaStreets
grantastreetvacationfinding
recommendationofthePlanning JUV'~uu,
HighwaysCodeauthorizestheCityCouncilto
GeneralPlanconformityandafterreceivingthe
WHEREAS,thePlanningadoptedResolutionNo.PB-13-08onMay29,2013,
whichfoundtheproposedvacauonRemnantParceltobeinconformancewiththe
AlamedaGeneralPlan,pursuantto.iovcrnmentCode§65402;and
by
WHEREAS,onJuly
CityCouncil;and
KeSOJUIlOnNo.14836approvingthevacation,wasadopted
WHEREAS,theCity offerfromCatellusAlamedaRetail,LLCto
purchasetheRemnantParcel,valued accordancewithCaliforniaStreetsand
HighwaysCodeSection8356.In theCitywillbenefitfromthefollowing,which
havebeenvaluedatthepurchasereservationbytheCityof(a)anonexclusivepublic
utilityeasementforelectricalpurposes,(b)anonexclusivepublicaccesseasementfor
pedestrianaccess,over,underandacrossRemnantParcel,includingingressandegress,
(2)recordationofacovenant maintainlandscapingonaportionoftheRemnant
Parcel,and(3)anofferofdedicationforstreetwidening,andsubjecttorecordedeasements,
includinganeasementinfavorof MunicipalUtilityDistrict;and
WHEREAS,thesaleof
QualityActreviewunderSection
RemnantParcelisexemptfromCaliforniaEnvironmental
Guidelines;and
WHEREAS,pursuantto Section3-10,norealpropertyoftheCityshallbe
leasedforaperiodinexcessofoneyearorsold,exceptupontheanaffirmativevoteoffour
membersoftheCityCouncil.
NOW,THEREFORE,
andupontheaffirmativevote
ORDAINEDbytheCityCounciloftheCityofAlameda
membersthat:
Section 1.Theform purchaseandsaleagreementonfilewiththe
CityClerk,andreferredtothestaffpresentedattheJuly23,2013CityCouncilmeeting
andterms,conditionsandcovenantssubstantiallyconformingtothoseterms,conditionsand
covenantscontainedthereinareapproved.
Section2.TheCityManagerorhisdesigneeisauthorizedtoexecuteonbehalfofthe
Cityalldocumentsnecessaryto thetheRemnantParceltoCatellusAlameda
Retail,LLC,theadjacentpropertyowner,CityClerkisdirectedtoattesttothesame.
Section3.ThisOrdinancebefullforceandeffectfromandaftertheexpiration
ofthirty(30)daysformthedateofitsfinalpassage.
BEITFURTHERRESOLVEDthattheCityClerkshallthenassurethattheGrantDeed
forRemnantParcel,together copyofthisOrdinanceattachedtotheGrant
Deed,isforwardedtotheAlamedaRecorder'sOfficeforrecording.
MayorMarieL.Gilmore
Attest:
LaraWeisiger,Cit
CityofAlameda
PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(City Remnant Parcel)
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (City Remnant Parcel) (this "Agreement") is made and entered into as of
2013 (the "Effective Date"), by and between the City of Alameda, a municipal
corporation existing under the law of the State of California and its Charter ("Seller"), and
Catellus Alameda Retail, LLC, a Delaware limited liability company ("Buyer"). Buyer and
Seller are sometimes referred to herein individually as a "Party" and collectively as the
"Parties."
RECITALS
This Agreement is entered upon the basis of the following facts, understandings and
intentions of the Parties:
A.Buyer owns certain real property, commonly known as 501-555 Wilver "Willie"
Stargell Avenue, adjacent to the new Wilver "Willie" Stargell Avenue intersection with Mariner
Square Loop in the City of Alameda, California (the "Catellus Property").
B.Seller owns an irregularly-shaped remnant parcel (0.34 acres) more particularly
described on Exhibit A attached hereto (the "Remnant Parcel") located adjacent to the Catellus
Property on Mariner Square Loop and extending as a narrow strip of frontage along Wilver
"Willie" Stargell Avenue.
C.The Remnant Parcel is a portion of former road rights-of-way, and is no longer
needed for that purpose.
D.On July 2, 2013, Resolution No. approving the vacation, was adopted
by the City Council.
E.The California Department of Transportation ("Caltrans") owns a remnant parcel
(the "Caltrans Parcel") adjacent to the Catellus Property and a portion of the Remnant Parcel.
F.Buyer intends to acquire the Caltrans Parcel from Caltrans pursuant to a purchase
and sale agreement between Buyer and Caltrans.
G.The City through its department of electric utility Alameda Municipal Power
owns existing electrical lines in, under and across a portion of the (1) Remnant Parcel and, (2)
pursuant to an unrecorded encroachment permit, the Caltrans Parcel.
H.Seller desires to sell to Buyer, and Buyer desires to purchase the Remnant Parcel
from Seller in accordance with California Streets and Highways Code Section 8356, on the terms
and conditions contained in this Agreement.
CAL\47814\9041 605
NOW, THEREFORE, in consideration of the foregoing recitals, the promises and
covenants of the Parties in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which the Parties acknowledge, the Parties agree as follows:
AGREEMENT
Definitions. Certain capitalized terms used in this Agreement have the meanings
defined below:
1.1 "Affidavits" are defined in Section 6,2(c).
1.2 "Business Day" means any day other than Saturday or Sunday, or
a federal or state holiday.
1.3 "Buyer" is defined in the preamble of this Agreement.
1.4 "Cash" means (i) currency; or (ii) a cashier’s check(s), currently
dated, payable to Escrow Holder and honored upon presentation for payment; or (iii) if Escrow
Holder requires, funds wire-transferred or otherwise deposited into Escrow Holder’s general
escrow account(s).
1.5 "Catellus Property" is defined in the Recitals to this Agreement.
1.6 "Covenant" means that certain Covenant and Agreement in the
form attached hereto as Exhibit B, which will be recorded against a portion of the Remnant
Parcel on the Close of Escrow.
1.7 "City" means the City of Alameda, California.
1.8 "City Council" means the City Council of City.
1.9 "City Encumbrances" are defined in Section 1.25 below.
1.10 "Claims" means all claims, demands, causes of action, judgments,
losses, damages, liabilities, costs and expenses (including attorneys’ fees and costs, whether suit
is instituted or not), whether known or unknown, fixed or variable, liquidated or contingent.
1.11 "Close of Escrow" means the date upon which a Grant Deed to the
Remnant Parcel is recorded in the Official Records, in accordance with the terms of this
Agreement.
1.12 "Closing Conditions" is defined in Section 5.
1.13 "Closing Date" means the date that is ten (10) days after Buyer’s
and Seller’s satisfaction or waiver of the Closing Conditions, provided that the Closing Date
shall occur no later than June 30, 2014.
1.14 "EBMUD Easement" is defined in Section 1.24 below.
C!AL\47814\904160.5 2
1.15 "Effective Date" is defined in the preamble of this Agreement.
1.16 "Escrow" means the escrow established pursuant to this
Agreement through which the purchase and sale of the Remnant Parcel shall be consummated.
1.17 "Escrow Holder" means First American Title Insurance
Company, 1850 Mt. Diablo Blvd., Suite 300, Walnut Creek, California 94596, Attention:
1.18 "Grant Deed" means a grant deed for conveyance of the Remnant
Parcel in the form attached hereto as Exhibit C, which shall include the reservation of a public
utilities easement and public access easement as described therein.
1.19 "Hazardous Materials" shall mean any hazardous substance as
defined in subdivision (h) of Section 25281 of the California Health and Safety Code, including,
without limitation, any petroleum hydrocarbons and any other products, materials or substances
derivative of any of the foregoing.
1.20 "Indemnified Claims" are defined in Section 9.5.
1.21 "Investigations" are defined in Section 4.1.
1.22 "Official Records" means the Office of the County Recorder of
Alameda County, California.
1.23 "Parties" and "Party" are defined in the preamble of this
Agreement.
1.24 "Permitted Exceptions" means general and special real property
taxes and assessments a lien not yet due and payable; and any other liens, easements (including
the existing easement in favor of the East Bay Municipal Utility District (the "EBMUD
Easement")), encumbrances, covenants, conditions and restrictions of record, together with the
exceptions which are not currently of record with are included on a pro forma title insurance
policy as described in the definition of "Preliminary Report" below; provided, however the
Permitted Exceptions shall specifically exclude any "Pre-Disapproved Exceptions" (as defined
below) and any such exceptions Buyer is able to negotiate with the Title Company to remove
prior to the Closing pursuant to Section 4.2 below, but shall expressly include the EBMUD
Easement and the City Encumbrances.
"Pre-Disapproved Exceptions" are defined in Section 4.2.
1.25 "Preliminary Report" means a Preliminary Report together with
legible copies of all recorded items covering the Remnant Parcel prepared by the Title Company.
At Buyer’s option, the Preliminary Report may be in the form of a pro forma title insurance
policy, reflecting the condition of title on Seller’s conveyance of the Remnant Parcel to Buyer
(which will include the documents to be recorded on or before the Close of Escrow, including
the Covenant and the reservation of the public utility and public access easements (collectively,
CIAL\47814\904160.5 3
the "City Encumbrances"), none of which are currently of record and so will not appear in the
Preliminary Report, but shall be included in Permitted Exceptions).
1.26 "Preserved Claims" are defined in Section 9.3.
1.27 "Purchase Price" is defined in Section 3.2.
1.28 "Remnant Parcel" is defined in the Recitals to this Agreement.
1.29 "Title Company" means First American Title Insurance
Company, 1850 Mt. Diablo Blvd., Suite 300, Walnut Creek, California 94596, Attention: Paul
Donahue [to confirm contact name].
1.30 "Title Policy" means a 2006 ALTA Owner’s Extended Coverage
title insurance policy with such endorsements as Buyer may reasonably request, including,
without limitation, the contiguity endorsement, in an amount to be negotiated by and between
Buyer and the Title Company, insuring fee title to the Remnant Parcel vested in Buyer, subject
only to the Permitted Exceptions.
2.Purchase and Sale. Seller agrees to sell the Remnant Parcel to Buyer and Buyer
agrees to purchase the Remnant Parcel from Seller, on the terms and conditions set forth herein.
3.Opening of Escrow Purchase Price.
3.1 Opening of Escrow. Upon mutual execution of this Agreement by
the Parties, the Parties shall open an Escrow at the office of Escrow Holder by delivering an
executed copy of this Agreement to Escrow Holder. This Agreement shall constitute joint
escrow instructions to Escrow Holder. The Parties shall execute such additional instructions not
inconsistent with the provisions of this Agreement which may be reasonably required by Escrow
Holder and shall be bound by Escrow Holder’s general instructions; provided, however, that as
between the Parties, if any conflict between the provisions of this Agreement and the provisions
of Escrow Holder’s general instructions exists or arises, then the provisions of this Agreement
shall control. Escrow Holder is designated the "real estate reporting person" for purposes of
Section 6045 of the Internal Revenue Code of 1986, as amended and Treasury Regulation
1.6045-4, and any instructions or settlement statement prepared by Escrow Holder shall so
provide. Escrow Holder shall be responsible for filing Form 1099-S with the Internal Revenue
Service.
3.2 Purchase Price. The purchase price for the Remnant Parcel is the
amount equal to the difference between (a) One Hundred Twenty Thousand Dollars ($120,000)
minus (b) the amount of the credits to Buyer for improvement costs as shown on Exhibit D
attached hereto, but in no event less than One Dollar ($1.00) (the "Purchase Price"), which shall
be paid by Buyer to Seller. As between Buyer and Seller, the cost of any such improvements in
excess of One Hundred Twenty Thousand Dollars ($120,000) shall be borne solely by Buyer.
On or before the Close of Escrow, Buyer shall deposit with Escrow Holder the closing costs and
prorations as provided in Section 8.1 below, in immediately available funds.
CEAL\47814\904160.5 4
4. Investigations: Title Review
4.1 Investigations. Buyer shall have one hundred eighty (180) days
following the Effective Date to conduct, review and analyze a Phase 1 environmental study of
the Remnant Parcel and, if necessary, a Phase 2 environmental study of the Remnant Parcel
(collectively, the "Investigations") as Buyer deems appropriate. In addition, upon forty-eight
(48) hours advance oral or written notice to Seller, Seller shall permit Buyer, its engineers,
contractors, consultants, employees, agents and licensees, to enter onto the Remnant Parcel and
conduct, at Buyer’s expense, any Investigations, provided Buyer delivers to Seller a certificate of
insurance evidencing that Buyer has in place Commercial General Liability insurance in the
minimum amount of Two Million Dollars ($2,000,000) per occurrence. Such insurance
coverage shall be with insurers reasonably satisfactory to Seller and Seller shall be designated as
an additional insured under such insurance policy. Buyer agrees that in performing its
Investigations Buyer shall not materially damage or alter the condition of the Remnant Parcel.
4.2 Indemnification.
a.Buyer shall indemnify, defend and hold harmless the Seller,
and its boards, commissions, councils, departments including the electric utility Alameda
Municipal Power, officers, employees, and agents from and against any and all claims, demands,
losses, liabilities, damage, liens, obligations, interest, injuries, penalties, fines, lawsuits or other
proceedings, judgments and awards and costs and expenses (including reasonable attorneys’ fees
and costs and consultant fees and costs and court costs), including the reasonable costs to the
Seller of carrying out the terms of any judgment, settlement, consent, decree, stipulated judgment
or other partial or complete termination of an action or procedure that requires the City to take
any action, arising from or as a result of the following (collectively, "Indemnified Claims"):
(i) any injury to or death of any person or damage to or destruction of any property occurring in,
on or about the Remnant Parcel, or any part thereof, whether to the person or property of Buyer
or its agents, their invitees, guests or business visitors (collectively, "Invitees"), or third persons,
resulting from any use or activity by Buyer or its agents, or (ii) the use of the Remnant Parcel or
any activities conducted thereon under this Agreement by Buyer, its agents or Invitees. The
foregoing indemnity shall exclude any Indemnified Claims to the extent they result from (x) the
negligence or willful or other actionable misconduct of the Seller or its boards, commissions,
councils, departments including the electric utility Alameda Municipal Power, officers,
employees, and agents, (y) the mere discovery by Buyer or its agents of any preexisting
condition of Hazardous Materials in, on, under or about the Remnant Parcel, provided Buyer
promptly notifies the Seller of such discovery and properly documents and handles such
Hazardous Materials actually extracted by Buyer or its agents. Buyer agrees to defend the
indemnified parties against any claims that are actually or potentially within the scope of the
indemnity provisions of this instrument, even if such claims may be groundless, fraudulent or
false.
b.Buyer, jointly and severally for itself, its successors, agents,
agrees to indemnify, defend (with counsel acceptable to Seller) and hold harmless Seller and its
boards, commissions, councils, departments including the electric utility Alameda Municipal
Power, officers, employees, agents and any successors to Seller’s interest in the Remnant Parcel
CIAL\47814\904 160.5 5
from and against any and all damages, liability, claims, suits, fines, penalties, charges,
administrative and judicial proceedings and orders, judgments, remedial actions of any kind and
all costs and cleanup actions of any kind, reasonable attorney’s fees, and all costs and expenses
incurred in connection therewith, (including, without limitation, costs of defense, any and all
fines, penalties, costs, damages, or consultant’s fees related to encountering, threatened release,
releasing, exposing, disposing or otherwise impacting Hazardous Materials or "pesticides" as
those terms might be defined in any federal, state or local legislation currently existing or
enacted in the future) (collectively, "Claims") to the extent caused directly or indirectly by the
Investigations conducted or performed within and under this Agreement by Buyer or its agents.
Provided, however, that such indemnification, defense and hold harmless obligation shall not
apply to any Claims due to (i) the negligence or willful or other actionable misconduct of Seller,
or its boards, commissions, councils, departments including the electric utility Alameda
Municipal Power, officers, employees, or agents, or (ii) the mere discovery by Buyer or its
agents of any preexisting condition of Hazardous Materials in, on, under or about the Remnant
Parcel, provided Buyer promptly notifies Seller of such discovery and properly documents and
handles such Hazardous Materials actually extracted by Buyer or its agents.
4.3 Title Review. Seller shall reasonably cooperate with Buyer’s
review of the Preliminary Report and negotiation of the Title Policy and the exceptions and
endorsements provided therein, provided Buyer acknowledges the future easements on the
Remnant Parcel as part of the Permitted Exceptions and the future easements on the Caltrans
Parcel contemplated by Section 5.2 below. Notwithstanding anything to the contrary provided
herein, Seller shall cause to be released and reconveyed from the Remnant Parcel, and to remove
as exceptions to title prior to the Closing the following (the "Pre-Disapproved Exceptions"):
any exceptions regarding tenants, mortgages, deeds of trust, or other monetary encumbrances,
monetary liens, assessments and/or indebtedness, except for the current installment of non-
delinquent real property taxes and assessments payable as a part of the real property tax bill to be
assessed upon Buyer’s ownership. Further, Seller shall provide an owner’s affidavit in a form
sufficient to cause the Title Company to the Title Policy free of (a) unrecorded mechanic’s lien
claims, and (b) rights of parties in possession.
5. Conditions to Close of Escrow. The Close of Escrow is subject to the satisfaction
of the following conditions precedent ("Closing Conditions") on or before the Closing Date:
5.1 The Title Company shall be irrevocably and unconditionally
committed to issue to Buyer, as of the Close of Escrow, the Title Policy.
5.2 Upon acquisition of the Caltrans Parcel by Buyer, Buyer shall
grant to the City, at no cost to the City, (a) a permanent, nonexclusive public utility easement for
electric utilities, and (b) a permanent, nonexclusive public access easement for pedestrian access,
each in a form approved by the City and Buyer and subject only to such terms and conditions
approved by Buyer in its reasonable discretion, and each to connect with the easements reserved
in the Grant Deed. Notwithstanding anything to the contrary in this Section 5, if the closing of
the acquisition of the Caltrans Parcel occurs after the Close of Escrow, this condition shall
survive the Close of Escrow and be satisfied post-Close of Escrow.
CIAL\4781 4\904 160.5
5.3 Buyer shall reimburse the Seller for the cost of the appraisal
(Seven Thousand Dollars ($7,000)) ("Appraisal Reimbursement") at the Close of Escrow.
5.4 Buyer shall reimburse the Seller for the Seller’s reasonable, out-of-
pocket legal fees (anticipated to be approximately Seven Thousand Dollars ($7,000)) incurred in
connection with the purchase and sale of the Remnant Parcel, which reimbursement may occur
post-Close of Escrow notwithstanding anything to the contrary in this Section 5, and shall
survive the Close of Escrow; provided, however, Buyer shall only be obligated to reimburse
Seller for such fees up to a total of ten thousand dollars ($10,000), and any fees expended by
Seller over such amount shall be borne solely by Seller.
5.5 Buyer’s and Seller’s representations and warranties set forth herein
shall be true and correct in all material respects as of the Close of Escrow.
6. Closing Procedures.
6.1 Closing Costs. Buyer shall pay all closing costs, escrow fees,
recording costs, and all City and County documentary transfer taxes payable in connection with
the purchase and sale of the Remnant Parcel. Buyer shall pay all premiums for the Title Policy,
including costs of additional endorsements and surveys.
6.2 Deposits by Seller. No later than two (2) Business Days prior to
the Closing Date, Seller shall deposit with Escrow Holder:
(a)The Grant Deed duly executed by Seller, acknowledged and in
recordable form, subject only to the Permitted Exceptions;
(b)State and federal non-foreign affidavits, in the forms required by
Escrow Holder (collectively, the "Affidavits"), duly executed by Seller; and
(c)Such other instruments of transfer or conveyance as Buyer or
Escrow Holder may reasonably request or as may be otherwise necessary to evidence and effect
the sale, assignment, transfer, conveyance and delivery of the Remnant Parcel to Buyer.
6.3 Deposits by Buyer. Before the Close of Escrow, Buyer shall
deposit with Escrow Holder the following:
(a)Immediately available funds for all closing costs in accordance
with Section 6.1 above and the Appraisal Reimbursement; and
(b)Such other instruments or documents as Escrow Holder may
reasonably request or may be necessary to effect the sale, assignment, transfer, conveyance and
delivery of the Remnant Parcel to Buyer.
6.4 Approval of Closing Statements. Escrow Holder shall before the
Close of Escrow prepare and deliver to each Party estimated and final closing statements for
such Party, which shall be reviewed and approved by such Party as evidenced by signed copies
CIAL\47814\904160.5 7
of such estimated and final closing statements delivered to Escrow Holder by each Party.
Escrow Holder shall make disbursements only in accordance with the final closing statement
approved by a Party.
6.5 Escrow Holder’s Actions. Upon the Closing Date, when Escrow
Holder holds the items required to be deposited by Seller and Buyer as described above and Title
Company is prepared to issue and deliver to Buyer the applicable Title Policy, Escrow Holder is
instructed and authorized to (a) record the Grant Deed and the Covenant in the Official Records;
(b) pay any transfer taxes; (c) instruct the County Recorder to return conformed copies of each of
the Grant Deed and the Covenant to Seller and Buyer; (d) disburse to Seller from the funds
deposited into Escrow by Buyer the Appraisal Reimbursement; (e) disburse from funds deposited
by Buyer amounts toward payment of all other items chargeable to the account of Buyer
hereunder, and disburse the balance of such funds, if any, to Buyer; and (f) deliver to Buyer an
original of the Title Policy, and fully-executed copies of the Affidavits.
6.6 Escrow Cancellation Charges. If the Close of Escrow does not
occur because of the default of a Party, the defaulting Party shall bear all Escrow Cancellation
Charges. If the Close of Escrow does not occur for any reason other than the default of a Party,
then Buyer shall bear all Escrow Cancellation Charges. As used herein, "Escrow Cancellation
Charges" means all fees, charges and expenses incurred by Escrow Holder or third parties
engaged by Escrow Holder, as well as all expenses related to the services of the Title Company
in connection with the issuance of the Preliminary Report and other title matters.
6.7 Conveyance and Possession. Upon Close of Escrow, Seller shall
convey title to the Remnant Parcel to Buyer and the Remnant Parcel shall be vacant and free and
clear of any possessory interests, subject only to the Permitted Exceptions,.
6.8 Termination of Escrow. Escrow Holder will have no liability or
responsibility for determining that a Party giving a notice of termination is not in breach under
this Agreement. Within three (3) days after receipt of a notice from one Party, Escrow Holder
will deliver one copy of such notice to the other Party. Unless written objection to termination of
this Escrow is received by Escrow Holder within five (5) days after Escrow Holder delivers such
notice to the other Party, Escrow Holder will promptly terminate this Escrow and return all funds
and documents held by it to the Party depositing same. If written objection to the termination of
this Escrow is delivered to Escrow Holder within such five (5) day period, Escrow Holder is
authorized to hold all funds and documents delivered to it in connection with this Escrow, and
Escrow Holder may, in Escrow Holder’s sole discretion, take no further action until otherwise
directed, either by the Parties’ mutual written instructions or by a final order or judgment of a
court of competent jurisdiction.
7. Representations and Warranties of Buyer. Buyer makes the following
representations and warranties to Seller:
7.1 Good Standing; Authority. Buyer is a limited liability company
duly formed, validly existing and in good standing under the laws of the State of Delaware.
CIAL\47814\904160.5 8
Buyer has full capacity, right, power and authority to enter into this Agreement and to perform
its obligations hereunder.
7.2 Binding Agreement. Upon the Effective Date, this Agreement
constitutes the legal, valid and binding obligation of Buyer enforceable against Buyer in
accordance with its terms.
7.3 No Defaults. The execution, delivery and performance of this
Agreement by Buyer does not and will not conflict with, or with due notice or the passage of
time, or both, constitute a default under any agreement or other instrument to which Buyer is a
party, pertaining to the Remnant Parcel.
7.4 Pending Litigation. Buyer has not received written notice of any
pending or threatened litigation against Buyer which would prevent Buyer from performing its
duties and obligations hereunder.
7.5 Insolvency. Buyer is not the subject of a bankruptcy proceeding.
All representations, warranties and covenants of Buyer in this Agreement are made as of the date
of this Agreement and as of the Close of Escrow and shall survive the Close of Escrow and the
recordation of the Grant Deed. It shall be a material default hereunder if Buyer is unable to
make such representations and warranties truthfully as of the Close of Escrow.
8. Representations and Warranties of Seller. Seller makes the following rep-
representations, warranties and covenants to Buyer:
8.1 Authority. Seller has full capacity, right, power and authority to
enter into this Agreement and to perform its obligations hereunder.
8.2 Enforceability. Seller has taken all necessary action to authorize
its execution, delivery and, subject to any conditions set forth in this Agreement, performance of
this Agreement. Upon the Effective Date hereof, this Agreement shall constitute a legal, valid
and binding obligation of Seller, enforceable against Seller in accordance with its terms.
8.3 No Defaults. The execution, delivery and performance of this
Agreement by Seller does not and will not conflict with, or with due notice or the passage of
time, or both, constitute a default under any agreement or other instrument to which Seller is a
party, pertaining to the Remnant Parcel.
8.4 Pending Litigation. Seller has not received written notice of any
pending or threatened litigation against Seller or the Remnant Parcel which would detrimentally
affect the development, value or use of the Remnant Parcel as contemplated by Buyer or prevent
Seller from performing its duties and obligations hereunder.
8.5 Insolvency. Seller is not the subject of a bankruptcy proceeding.
CIAL\47814\904160.5 9
All representations and warranties of Seller in this Agreement are made as of the date of this
Agreement and as of the Close of Escrow, and shall survive the Close of Escrow and the
recordation of the Grant Deed. It shall be a material default if Seller is unable to make such
representations and warranties truthfully as of the Close of Escrow.
9. Disclaimer by Seller; Releases by Buyer.
9.1 Basis of Purchase. Buyer acknowledges that it is acquiring the
Remnant Parcel in reliance solely on (a) Buyer’s inspection of the Remnant Parcel, (b) Buyer’s
independent verification of the truth of any documents delivered by Seller to Buyer and of any
statements made by Seller to Buyer concerning the Remnant Parcel and its condition, and (c) the
opinions and advice of consultants engaged by Buyer concerning the Remnant Parcel and its
development. In addition, Buyer understands and agrees that except as expressly set forth in
Section 8 above, Seller is not making and has not at any time made any warranties or
representations of any kind or character express or implied, with respect to the Remnant Parcel,
including, but not limited to, any warranties or representations as to habitability, merchantability
or fitness for a particular purpose.
9.2 Basis of Purchase. SUBJECT TO BUYER’S RIGHTS UNDER
THE UNIFORM VENDOR AND PURCHASER RISK ACT, THE REMNANT PARCEL IS
BEING SOLD "AS IS," "WHERE IS," AND "WITH ALL FAULTS" AS OF THE CLOSE OF
ESCROW, WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER WITH
RESPECT TO ITS CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE,
MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED. EXCEPT
FOR THE WARRANTIES AND REPRESENTATIONS SET FORTH IN SECTION 8 ABOVE
OR EXPRESSLY SET FORTH HEREIN, SELLER SPECIFICALLY DISCLAIMS ANY
WARRANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT,
EXPRESS OR IMPLIED, CONCERNING THE REMNANT PARCEL, INCLUDING ANY
PHYSICAL OR LEGAL ASPECT OR CHARACTERISTIC OF THE REMNANT PARCEL.
BUYER ACKNOWLEDGES THAT BUYER IS PURCHASING THE REMNANT PARCEL
BASED SOLELY ON BUYER’S OWN INDEPENDENT INVESTIGATIONS AND
FINDINGS AND NOT IN RELIANCE ON ANY INFORMATION PROVIDED BY SELLER
OR BY SELLER’S EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS.
9.3 Release. Without limiting the provisions of Section 9.2 above and
expressly excluding the covenants and obligations of Seller which survive the Close of Escrow
(if any), and also excluding Claims to the extent resulting from the gross negligence or willful
misconduct of Seller or Seller’s breach of this Agreement (collectively, the "Preserved
Claims"), effective as of the Close of Escrow, Buyer releases Seller from any and all Claims,
whether known or unknown, fixed or variable, or contingent or liquidated, related to or arising
from, out of or in connection with the condition of the Remnant Parcel, including without
limitation with respect to (a) any construction defects in any improvements on or in the vicinity
of the Remnant Parcel; (b) errors or omissions in the design or construction of any improvements
on or in the vicinity of the Remnant Parcel; (c) its compliance with applicable laws; (d) the
value, utility or salability of the Remnant Parcel; (e) the Remnant Parcel’s suitability for any
purpose whatsoever; or (f) other conditions or characteristics (including environmental or soils
CIAL\47814\904160.5 10
conditions) of or affecting the Remnant Parcel. The release set forth in this Section specifically
includes, but is not limited to, any and all Claims relating to Hazardous Materials that are not
Preserved Claims.
9.4 Scope of Releases. BUYER REPRESENTS AND WARRANTS
TO SELLER THAT, WITH RESPECT TO THE RELEASES OF SELLER FROM LIABILITY,
AS SET FORTH IN SECTION 9.3 ABOVE AND ELSEWHERE IN THIS AGREEMENT,
BUYER HAS BEEN ADVISED BY LEGAL COUNSEL, OR HAS BEEN ADVISED TO
SEEK LEGAL COUNSEL AND HAS HAD ADEQUATE OPPORTUNITY SO TO SEEK
SUCH ADVICE, AND BUYER IS FAMILIAR WITH AND HEREBY WAIVES THE
BENEFIT OF THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH
PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR AND INDICATES
THAT FACT BY INITIALING HERE:
BUYER’S INITIALS
9.5 Buyer’s Indemnification of Seller. Buyer hereby agrees to
indemnify and defend and hold harmless Seller from all Claims, including without limitation
reasonable legal fees, incurred by Seller, which arise or result from any of the following after the
Closing (collectively, "Indemnified Claims"): (a) the physical condition of the Remnant Parcel,
any patent or latent defects affecting the Remnant Parcel or any other aspect of the Remnant
Parcel; (b) any governmental laws and regulations, including without limitation environmental
laws, and zoning and land use laws and regulations to which the Remnant Parcel may be subject;
(c) Buyer’s ownership, development, use and operation of, and construction on, the Remnant
Parcel; (d) the presence of any Hazardous Materials on or under the Remnant Parcel; (e) all
obligations of Buyer under this Agreement; (f) all matters released by Buyer under Section 9.3
above; or (g) any other matter relating to the Remnant Parcel; provided, however, that the term
Indemnified Claims shall not include any Preserved Claims. Buyer’s obligations to the Seller
with respect to the Indemnified Claims shall survive the Close of Escrow.
10. Damage or Destruction. If any damage or destruction to the Remnant Parcel
occurs prior to Close of Escrow, then Buyer may elect to either (1) terminate this Agreement, or
(2) purchase the Remnant Parcel without any reduction in the Purchase Price.
CIAL\47814\904160,5 11
11. Breach and Remedies.
11.1 Seller Default/Breach.
(a)Seller shall have ten (10) days from delivery of written notice of
breach or default to Seller within which to cure any such breach or default under this
Agreement. If Seller defaults in the performance of any of its material obligations pursuant to
this Agreement and the Close of Escrow for the Remnant Parcel fails to occur solely by reason
thereof, Buyer’s sole remedies shall be either (i) to terminate this Agreement by written notice
delivered to Seller and Escrow Holder, or (ii) to enforce specific performance of Seller’s
obligation to execute and deliver the Grant Deed and the other documents required by this
Agreement above and to convey the Remnant Parcel to Buyer, so long as Buyer (A) is ready,
willing, able to perform, (B) is not in material default of this Agreement, (C) has delivered all of
the Purchase Price to Escrow and, upon filing, Buyer provides Seller with evidence that Buyer
has the Purchase Price and other closing funds, and (D) has fully performed all other Buyer’s
obligations pursuant to this Agreement on or before the Close of Escrow, except those
obligations which could not be performed by Buyer as a result of Seller’s default and
nonperformance.
(b)If Buyer does not bring an action for specific performance of this
Agreement within sixty (60) days after the Close of Escrow or the date Buyer delivers written
notice to Seller of Seller’s default, whichever is earlier, Buyer shall be conclusively deemed to
have elected to waive specific performance and proceed under Section 11.1(a)(i). Buyer
acknowledges that each of the foregoing conditions is in every detail material to Seller, and
therefore, if Buyer fails to satisfy any one of such conditions, Seller shall be entitled to an
immediate dismissal of any such action and an immediate expungement of any lis pendens.
Except to the extent permitted above, Buyer shall not be entitled to specific performance.
Buyer acknowledges that a material inducement to Seller’s decision to sell the Remnant Parcel
to Buyer is the agreement of Buyer not to impede or interfere with a subsequent sale of the
Remnant Parcel in the event the Closing does not occur, and that Seller will be damaged in the
event Buyer fails to comply with the requirements of this Section 11.1.
11.2 Buyer Default/Breach.
(a)Buyer shall have ten (10) days from delivery of written
notice of breach or default to Buyer within which to cure any such breach or default under this
Agreement.
(b)IF BUYER FAILS TO CURE SUCH BREACH OR
DEFAULT WITHIN THAT PERIOD, AND/OR IF THE CLOSE OF ESCROW DOES NOT
OCCUR BECAUSE OF BUYER’S UNCURED BREACH OR DEFAULT UNDER THIS
AGREEMENT, SELLER WILL BE DAMAGED AND WILL BE ENTITLED TO
COMPENSATION FOR THOSE DAMAGES. SUCH DAMAGES WILL, HOWEVER, BE
EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. BUYER DESIRES TO
LIMIT THE AMOUNT OF DAMAGES FOR WHICH BUYER MIGHT BE LIABLE
SHOULD BUYER FAIL TO CLOSE THE ESCROW IN BREACH THIS AGREEMENT.
CIAL\47814\904160.5 12
BUYER AND SELLER WISH TO AVOID THE COSTS AND LENGTHY DELAYS WHICH
WOULD RESULT IF SELLER FILED A LAWSUIT TO COLLECT ITS DAMAGES FOR
FAILURE OF BUYER TO CLOSE THE ESCROW IN BREACH OF THIS AGREEMENT.
THEREFORE, IF THE ESCROW FAILS TO CLOSE DUE TO BUYER’S DEFAULT
UNDER THIS AGREEMENT, THIS AGREEMENT SHALL BE DEEMED TERMINATED
AND THE FOLLOWING SHALL BE DEEMED TO CONSTITUTE A REASONABLE
ESTIMATE OF SELLER’S DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF
THE CALIFORNIA CIVIL CODE:
THE SUM OF (A) THE APPRAISAL REIMBURSEMENT; PLUS (B) THE AMOUNT
OF SELLER’S REASONABLE, OUT-OF-POCKET LEGAL FEES INCURRED IN
CONNECTION WITH THE PURCHASE AND SALE OF THE REMNANT PARCEL TO
BUYER, UP TO TEN THOUSAND DOLLARS ($10,000) OF SUCH LEGAL FEES.
SELLER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF THE FAILURE
TO CLOSE THE ESCROW RESULTING FROM BUYER’S DEFAULT SHALL BE SUCH
AMOUNTS; PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT LIMIT
SELLER’S RIGHTS OR REMEDIES (WHETHER ARISING AT LAW OR IN EQUITY) TO
RECEIVE REIMBURSEMENT FOR THE APPRAISAL REIMBURSEMENT AND FOR
ATTORNEYS’ FEES AND COSTS IN ACCORDANCE WITH THIS AGREEMENT.
BUYER’S INITIALS SELLER’S INITIALS
11.3 No Punitive or Consequential Damages. In no event shall either
Party be entitled to punitive, exemplary or consequential damages against the other.
12.Real Estate Brokerage Commission. Seller and Buyer each represents and
warrants to the other that it has not dealt with or been represented by any brokers or finders in
connection with the purchase and sale of the Remnant Parcel. Each Party shall indemnify and
hold the other free and harmless from and against all costs and liabilities including, without
limitation, attorneys’ fees and the costs and expenses of litigation, for causes of action or
proceedings which may be instituted by any broker, agent or finder, licensed or otherwise,
claiming through, under or by reason of the conduct of the indemnifying Party in connection
with this transaction. The indemnity and hold harmless provision set forth in this Section 12
shall survive the Close of Escrow or earlier termination of this Agreement. The Parties further
agree that no broker shall be a party to or a third party beneficiary of this Agreement or the
Escrow, and that no consent of any broker shall be necessary for any agreement, amendment or
document with respect to the transaction contemplated by this Agreement.
13.Miscellaneous.
13.1 No Obligation with Respect to Existing Improvements. Seller
acknowledges that Buyer intends to redevelop the Remnant Parcel and agrees that Buyer shall
have no obligation to repair the improvements on the Remnant Parcel existing as of the Effective
CIAL\47814\904160.5 13
Date except to the extent such improvements are accessible to and pose an imminent danger to
the public. This provision shall expressly survive the Close of Escrow.
13.2 No Modifications. No addition to or modification of any term or
provision of this Agreement shall be effective unless set forth in writing and signed by both
Seller and Buyer.
13.3 Construction of Agreement. Each Party acknowledges that it is
freely and voluntarily entering into this Agreement, uncoerced by any other person and that it has
been afforded the opportunity to obtain the advice of legal counsel of its choice with regard to
this Agreement in its entirety and understands the same. Each Party and attorneys for each Party
have had the opportunity to participate in the drafting and preparation of this Agreement.
Therefore, the provisions of this Agreement shall not be construed in favor of or against either
Party, but shall be construed as if both Parties equally prepared this Agreement.
13.4 Headings. The section or paragraph headings herein are used only
for the purpose of convenience only and shall not be deemed to limit the subject of the sections
or paragraphs of this Agreement or to be considered in their construction.
13.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
13.6 Time of the Essence. Time is of the essence of each and every
provision of this Agreement. Unless Business Days are expressly provided for, all references to
"days" herein shall refer to consecutive calendar days. If the Closing Date or any other date or
time period provided for in this Agreement is or ends on a day which is not a Business Day, the
Closing Date or such last day, as the case may be, will be the next following Business Day.
13.7 Successors and Assigns. All of the provisions of this Agreement
shall inure to the benefit of and shall be binding upon the successors and assigns of the Parties.
13.8 Joint and Several Liability. If more than one person signs and
enters into this Agreement as Seller or Buyer, or if Buyer assigns this Agreement to more than
one person, then the liability of each such person signing and entering into this Agreement as a
Seller or as Buyer and the liability of each such assignee shall be joint and several. As used in
this Agreement "person" includes "entity."
13.9 Further Assurances. Each of the Parties shall execute and deliver
any and all additional papers, documents, and other assurances, and shall do any and all acts and
things reasonably necessary in connection with the performance of their obligations hereunder
and to carry out the intent of this Agreement.
13.10 No Waiver. The waiver by one Party of the performance of any
covenant, condition or promise, or of the time for performing any act, under this Agreement shall
not invalidate this Agreement nor shall it be considered a waiver by such Party of any other
covenant, condition or promise, or of the time for performing any other act required, under this
Agreement. The exercise of any remedy provided in this Agreement shall not be a waiver of any
CIAL\47814\904160.5 14
remedy provided by law, and the provisions of this Agreement for any remedy shall not exclude
any other remedies unless they are expressly excluded.
13.11 Severability. If any provision of this Agreement shall become
illegal, null or void or against public policy, for any reason, or shall be held by any court of
competent jurisdiction to be illegal, null or void or against public policy, the remaining
provisions of this Agreement shall not be affected thereby and shall remain in force and effect to
the full extent permissible by law.
13.12 Survival of Provisions. Buyer’s and Seller’s representations,
warranties, indemnities and post-closing covenants set forth in this Agreement will remain
operative, will be deemed made at the Close of Escrow, and will survive the Close of Escrow
and the signing and delivery of Seller’s Grant Deed.
13.13 Incorporation of Exhibits. All exhibits to this Agreement are
incorporated herein by this reference.
13.14 Attorneys’ Fees. If any action or proceeding is instituted to
enforce or interpret any provision of this Agreement, the prevailing Party therein shall be entitled
to recover its attorneys’ fees and costs from the losing party.
13.15 Notices. Any notice to be given hereunder to either Party or to
Escrow Holder shall be in writing and shall be given either by personal delivery (including
express or courier service), or by registered or certified mail, with return receipt requested,
postage prepaid and addressed as follows:
To Seller: City of Alameda
2263 Santa Clara Avenue
Alameda, CA 94501
Attention: City Manager
Telephone: (510) 747-4700
with a copy to: City of Alameda
2263 Santa Clara Avenue
Alameda, CA 94501
Attention: City Attorney
Telephone: (510) 747-4750
To Buyer: Catellus Alameda Retail, LLC
66 Franklin Street, Suite 200
Oakland, CA 94607
Attention: William Hosler
Telephone: (510) 251-9005
CIAL\47814\904 160.5 15
To Escrow Holder: First American Title Insurance Company
1850 Mt. Diablo Blvd., Suite 300
Walnut Creek, CA 94596
Attention:
Re: Escrow No.
Telephone:
Any Party may, by written notice to the others and to Escrow Holder, designate a different
address which shall be substituted for the one specified above. Any such notice shall be deemed
to have been delivered upon its receipt or upon the second attempt at delivery, as evidenced by
the regular records of the person or entity attempting delivery, in all other cases.
13.16 Relationship of Parties. The Parties agree that their relationship is
that of Seller and Buyer, respectively, and that nothing contained herein shall make either Party
the fiduciary of the other for any purpose whatsoever, nor shall this Agreement be deemed to
create any form of business organization between the Parties, including without limitation a joint
venture or partnership, nor is either Party granted any right or authority to assume or create any
obligation or responsibility on behalf of the other Party.
13.17 Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
BUYER:
Catellus Alameda Retail, LLC,
a Delaware limited liability company
By:
Name:
Title:
CIAL\47814\904160.5 16
p.
City of Alameda,
a municipal corporation
LON Approved as to form:
John A. Russo
City Manager By:
Stephanie Garrabrant-Sierra
Assistant City Attorney
Recommended for Approval:
RE
Debbie Potter
Interim Community Development Director
CIAL\47814\904160.5 17
ACCEPTANCE BY ESCROW HOLDER:
First American Title Insurance Company hereby acknowledges that it has received a fully
executed counterpart of the foregoing Agreement of Purchase and Sale of Real Property and
Joint Escrow Instructions by and between the City of Alameda, as seller, and Catellus Alameda
Retail, LLC, as buyer, with respect to that certain real property located in the City of Alameda,
County of Alameda, State of California ("Agreement"). Capitalized terms not otherwise defined
in this acceptance shall have the meaning ascribed to them in the Agreement. The undersigned
agrees to act as Escrow Holder under the Agreement and to be bound by and perform the terms
thereof as such terms apply to Escrow Holder.
First American Title Insurance Company
Dated: By:_
Name:
Title:
CIAL\47814\904160.5 18
The land situated in the City of Alameda, County of Alameda, State of California,
described as follows:
A portion of "Relinquishment of Highway Right of Way" from the State of California to
the City of Alameda, recorded December 2, 1970 in Reel 2742, Image 688 and Document
Number 70-132646, Alameda County Records and a portion of property granted to the
City of Alameda and being a portion of "Exhibit A - Wilver "Willie" Stargel Avenue,
recorded August 5, 2008 in Document Number 2008235451, Alameda County Records,
further described as follows:
Commencing at the easterly terminus of a course described as "South 6549’07" West,
101.80 feet" , as said course is described within that certain Grant Deed recorded March
26, 2012 in Document Number 2012101548, Alameda County Records; thence
southwesterly along last said course South 6549’07" West, 101.80 feet to the beginning
of a non-tangent curve concave to the North and having a radius of 174.77 feet; thence
northwesterly along the westerly line of the land described within said deed
(2012101548), said westerly line also being the easterly right of way of "Willie Stargel
Avenue" 67.81 feet along said curve through a central angle of 2213’54"; thence South
3730’42" West 2.50 feet along a radial line to last said curve to the True Point of
Beginning and the beginning of a curve concave to the northeast and having a radius of
177.27 feet, a radial line to the beginning of said curve bears South 3730’43" West;
thence northeasterly 28.02 feet along said curve through a central angle of 0903’25" to
the beginning of a compound curve concave to the northeast and having a radius of
207.50 feet; thence northerly 123.98 feet along said curve through a central angle of
3414’03" to the beginning of a reverse curve concave to the southwest and having a
radius of 528.50 feet; thence northerly 170.28 feet along said curve through a central
angle of 18’27’36" to the beginning of a reverse curve concave to the northeast and
having a radius of 94.50 feet; thence northerly 23.55 feet along said curve through a
central angle of 1416’32" to the beginning of a reverse curve concave to the southwest
and having a radius of 105.50 feet; thence northerly 38.36 feet along said curve through a
central angle of 2049’50" to the beginning of a compound curve concave to the
southwest and having a radius of 537.50 feet; thence northwesterly 99.39 feet along said
curve through a central angle of 1035’42" to the beginning of a reverse curve concave to
the northeast and having a radius of 44.50 feet; thence northerly 21.25 feet along said
Page 1 of
curve through a central angle of 27’21’33" to a point of cusp with a curve concave to the
west and having a radius of 16.00 feet, a radial line to the beginning of said curve bears
South 2004’16" West; thence easterly, northerly and westerly 54.80 feet along said
curve through a central angle of 19615’01" to a point of cusp with a curve concave to
the east and having a radius of 40.00 feet, a radial line to the beginning of said curve
bears North 634859" West; thence northerly 7.94 feet along said curve through a
central angle of 11’22’23"; thence North 3733’24" East 2.88 feet to the northwest
corner of said deed (2012101548); thence South 875529" East, 149.85 feet to a point on
the westerly right of way line of "Webster Street", also being State Route 260 as
described within a Deed from the Regents of the University of California recorded May
28, 1959 in Book 9041 of Official Records of Alameda County, at Page 221, said point
also being the most westerly corner of said Parcel (9041 OR 221); thence along the
westerly line of "Mariner Square Loop" as described within said relinquishment
(Document No. 70-132646) North 2317’30" West, 59.44 feet to the beginning of non-
tangent curve concave northeasterly having a radius of 31.50 feet, a radial line to the
beginning of said curve bears South 2317’30" East; thence westerly, northwesterly and
northerly along the westerly line of "Mariners Square Loop" an arc length of 54.05 feet
through a central angle of 98’18’13"; thence continuing along said westerly line of
"Mariners Square Loop" South 14’59’17" East, 184.49 feet; thence leaving said westerly
line of "Mariners Square Loop" along a line South 7528’25" West, 2.56 feet to a point,
said point also lying on the back of a constructed concrete curb; thence continuing along
said back of curb the following 14 courses: (1) South 1449’16" East, 39.98 feet to the
(2) beginning of a curve concave northwesterly having a radius of 205.50 feet, a radial
line to the beginning of said curve bears North 7510’44" East; thence southwesterly
along said curve an arc length of 106.96 feet through a central angle of 2949’22"; (3)
South 1500’06" West, 23.78 feet to the (4) beginning of a curve concave northwesterly
having a radius of 150.50 feet, a radial line to the beginning of said curve bears South
7459’54" East; thence southwesterly along said curve an are length of 26.28 feet through
a central angle of 1000’15"; (5) South 2500’21" West, 24.53 feet to the (6) beginning
of a curve concave southwesterly having a radius of 150.50 feet, a radial line to the
beginning of said curve bears South 6459’39" East; thence southwesterly along said
curve an arc length of 29.92 feet through a central angle of 1123’20"; (7) South
3623’41’ West, 12.40 feet to the (8) beginning of a curve concave easterly having a
radius of 49.50 feet, a radial line to the beginning of said curve bears North 53’36’19"
West; thence southerly and southeasterly along said curve an are length of 69,54 feet
through a central angle of 802949" to the (9) beginning of a Reverse Curve concave
southwesterly having a radius of 532.50 feet; thence southeasterly along said curve an arc
Page 2 of 3
length of 91.92 feet through a central angle of 953’24" to the (10) beginning of a
Compound Curve concave southwesterly having a radius of 100.50 feet; thence
southwesterly along said curve an arc length of 36.54 feet through a central angle of
2049’51" to the (11) beginning of a Reverse Curve concave easterly having a radius of
99.50 feet; thence southeasterly along said curve an arc length of 24.79 feet through a
central angle of 1416’32" to the (12) beginning of a non-tangent curve concave
southwesterly having a radius of 521.23 feet, a radial line to the beginning of said curve
bears North 62’18’09" East; thence southerly along said curve an arc length of 168.56
feet through a central angle of 1831’43" to the (13) beginning of a non-tangent curve
concave northeasterly having a radius of 212.50 feet, a radial line to the beginning of said
curve bears South 8050’02" West; thence southeasterly along said curve an arc length of
127.08 feet through a central angle of 3415’54" to the (14) beginning of a Compound
Curve concave northeasterly having a radius of 182.27 feet; thence southeasterly along
said curve an arc length of 28.81 feet through a central angle of 903’26"; thence leaving
said back of curb North 37 11 30’42" East, 5.00 feet to the True Point of Beginning.
Containing an area of 13,563 square feet (0.31 acres), more or less.
Bearing and Distances referred to hereon are based on the California Coordinate System
of 1983, Zone III. Distances shown are grid distances; multiply distances by 1.0000705 to
obtain ground level distances.
JN 0
(Exp.9-3O-L \n
NO. 6925 J*
3
1.-
Page 3 of 3
CO (p ta
c \t
CO
cU O %
LA
(-’0
Ll
C15 \
L5
0
S75
2.56’
S14"49’16"E .z
-.-_ 28’25 "W \
39.98’ 7\7
Ar
-- =2949’22" \\ O
R=205.50’l \ 1c
L=106.96’ I V A=9818’13" a. ) S1500’06"W 23.78
,’ \ R=31.50’
S74’5954"E(RJ 1 \’2. rL=54.05’
’ I s
–iCF__ /
- -
L(!-" -C7 Cll
LINE TABLE
LINE BEARING LENGTH
Li S3730’42"W(R) 2.50’
L2 N3733’24"E 2.88’
L3 S2500’21 "W 24.53’
L4 S36’23’41 "W 12.40’
L5 N37*30’42"E 5.00’
CURVE TABLE
CURVE DELTA RADIUS LENGTH
C 22’13’54" 174.77’ 67.81’
C2 903’25" 177.27’ 28.02’
C3 14 ’ 16’32" 94.50’ 23.55’
C4 2049’50" 105.50’ 38.36’
C5 1035’42" 537.50’ 99.39’
C6 2721’33" 44.50’ 21.25’
C7 196’15’01" 16.00’ 54.80’
C8 1 1’22’23" 40.00’ 7.94’
09 1000’15" 150.50’ 26.28’
010 11’23’20" 150.50’ 29.92’
Cli 80’29’49" 49.50’ 69.54’
C12 953’24" 532.50’ 91.92’
013 2049’51" 100,50’ 36.54’
014 1416’32" 99.50’ 24.79’
C I 182.27’ 28.81’
r , \\\
1’
’ -
\ C14-.
\ do:
C4
0 ~-
LLJ
LIJ
UJH
3U)
0 r
ftu
F-
WV)
H-Iti
<LU
F-
(1)
’0
212LQ,LR)_
N23’ 1 7’30"W
lCy Belfecci & Associates, Inc.
Civil Englnoring LandSurveylng
2290 D(.mond Botvsrd, SuRe 100 Concord, CA 94520
Phone (925) 585-4589 F ax (925) 085-4838
DATE: 06/12/13 1 SCALE: 1"=100’
PROJECT NO.: 11010 ISHEET 1 OF 1
EXHIBIT B
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Alameda
950 West Mall Square
Alameda, CA 94501
Attn: Public Works Director
Exempt from recording fees pursuant
to Government Code Sections 6103
and 27383.
COVENANT AND AGREEMENT
(Landscape Maintenance)
THIS COVENANT AND AGREEMENT (Landscape Maintenance) (the "Covenant
and Agreement") is made as of , 2013, by Catellus Retail Alameda, LLC, a
Delaware limited liability company ("Owner"), as the owner of certain real property located in
the City of Alameda, County of Alameda, State of California, more particularly described on
Exhibit A attached hereto (the "Property").
ARTICLE 1 - Definitions
The following terms shall have the following definitions:
1.1 city. The City of Alameda, California.
1.2 Covenant and Agreement. The Covenant and Agreement is as defined in the
preamble, together with any amendments thereto.
1.3 Landscape Maintenance Area. Collectively, that portion of the Property depicted
on Exhibit B attached hereto, as more particularly described in Exhibit C attached hereto.
1.4 Landscape Improvements. Certain landscaping, planting, and related
improvements and facilities as are now or hereafter constructed or installed and owned by Owner
within or related to the Landscape Maintenance Area. Among other things, Landscape
Improvements are contemplated to include: (a) landscaped and planted areas; (b) paving; and
(c) irrigation facilities.
1.5 Owner. Catellus Retail Alameda, LLC, a Delaware limited liability company, and
its successors and assigns.
CIAL\478 14\904378.5
ARTICLE 2 - Maintenance Obligations
2.1 Maintenance of Landscape Improvements. Owner shall maintain, in good
condition and repair, the Landscape Maintenance Area, and the Landscape Improvements
(collectively and as modified or relocated from time to time, the "Improvements").
2.2 Maintenance Standards.
2.2.1 The Improvements shall be maintained in good condition and repair and in
compliance with all applicable laws and ordinances.
2.2.2 Any repair work undertaken by the Owner hereunder shall be done in a
good and workmanlike manner in accordance with good installation and construction practices in
compliance with all applicable laws and regulations and this Covenant and Agreement.
2.2.3 Landscape maintenance shall include regular mowing, weeding, irrigation,
pruning, fertilization and other customary prudent landscaping practices.
ARTICLE 3 - Covenants Running with the Land
3.1 Runs with Land. Owner hereby subjects the Property to the covenants and
agreements set forth in this Covenant and Agreement. Owner hereby declares its express intent
that the covenants and agreements set forth herein shall be deemed covenants running with the
land in perpetuity and shall pass to and be binding upon all parties having any interest in the
Property. The Owner hereby declares its understanding and intent that: (i) the covenants and
agreements contained in this Covenant and Agreement shall be construed as covenants running
with the land pursuant to California Civil Code Section 1468 and not as conditions which might
result in forfeiture of title by Owner.
3.2 Benefit of City. All covenants and agreements contained herein without regard to
technical classification or designation shall be binding upon Owner for the benefit of the City
and such covenants and agreements shall run in favor of the City for the entire period during
which such covenants and restrictions shall be in force and effect, without regard to whether the
City is an owner of any land or interest therein to which such covenants and restrictions relate.
3.3 Title by Foreclosure. Except to the extent otherwise expressly provided herein,
all of the provisions contained in this Covenant and Agreement shall be binding on and effective
against any owner of the Property whose title or any portion thereof is acquired by foreclosure,
trustee’s sale, deed in lieu of foreclosure, or otherwise.
CIAL\47814\904378.5 2
ARTICLE 4- Amendments
4.1 Amendments. The provisions of this Covenant and Agreement may not be
amended nor shall other provisions be adopted that purport to supersede the provisions of this
Covenant and Agreement without the written approval of the City. An amendment of this
Covenant and Agreement is effective when it has been executed and recorded in the Official
Records of Alameda County, California, together with the City’s written consent.
ARTICLE 5 - Miscellaneous
5.1 Headings. The headings used in this Covenant and Agreement are for
convenience only and are not to be used to interpret the meaning of any of the provisions of this
Covenant and Agreement.
5.2 Severability. The provisions of this Covenant and Agreement shall be deemed
independent and severable, and the invalidity or partial invalidity or unenforceability of any
provision or provisions or any portion thereof shall not invalidate any other provision or any
portion of the provisions not found invalid or unenforceable.
5.3 Incorporation of Exhibits. All exhibits referred to herein and attached to this
Covenant and Agreement are incorporated herein by reference as fully set forth herein.
5.4 Perpetual. This Covenant and Agreement shall be in perpetuity unless this
Covenant and Agreement is terminated by the City. The termination shall be effective on
recordation of a notice of termination executed by the City in the Official Records of Alameda
County, California.
5.5 Termination of Any Responsibility of Owner. In the event Owner shall convey
all of its rights, title and interest in and to the Property then and in such event, Owner shall be
relieved of the performance of any further duty or obligation hereunder, and such new owner
shall be obligated to perform all such duties and obligations of Owner.
5.6 Governing Law. This Covenant and Agreement shall be governed by the laws of
the State of California without reference to its conflict of laws or choice of law provisions.
This Covenant and Agreement is executed as of the date first set forth above.
Owner:
CATELLUS ALAMEDA RETAIL, LLC,
a Delaware limited liability company
By:
Name:
Title:
CtAL\478 14\904378.5 3
STATE OF CALIFORNIA
COUNTY OF
On before me, a
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies) and by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Name (typed or printed), Notary Public in
and for said County and State. (seal)
CIAL\47814\9043785 4
I n MEN a 11 OWN 1914 1 WA#
The land situated in the City of Alameda, County of Alameda, State of California,
described as follows:
A portion of "Relinquishment of Highway Right of Way" from the State of California to
the City of Alameda, recorded December 2, 1970 in Reel 2742, Image 688 and Document
Number 70-132646, Alameda County Records and a portion of property granted to the
City of Alameda and being a portion of "Exhibit A - Wilver "Willie" Stargel Avenue,
recorded August 5, 2008 in Document Number 2008235451, Alameda County Records,
further described as follows:
Commencing at the easterly terminus of a course described as "South 6549’07" West,
101.80 feet" , as said course is described within that certain Grant Deed recorded March
26, 2012 in Document Number 2012101548, Alameda County Records; thence
southwesterly along last said course South 6549’07" West, 101.80 feet to the beginning
of a non-tangent curve concave to the North and having a radius of 174.77 feet; thence
northwesterly along the westerly line of the land described within said deed
(2012101548), said westerly line also being the easterly right of way of "Willie Stargel
Avenue" 67.81 feet along said curve through a central angle of 22’13’54"; thence South
3730’42" West 2.50 feet along a radial line to last said curve to the True Point of
Beginning and the beginning of a curve concave to the northeast and having a radius of
177,27 feet, a radial line to the beginning of said curve bears South 3730’43" West;
thence northeasterly 28.02 feet along said curve through a central angle of 0903’25" to
the beginning of a compound curve concave to the northeast and having a radius of
207.50 feet; thence northerly 123.98 feet along said curve through a central angle of
3414’03" to the beginning of a reverse curve concave to the southwest and having a
radius of 528.50 feet; thence northerly 170.28 feet along said curve through a central
angle of 18’2736" to the beginning of a reverse curve concave to the northeast and
having a radius of 94.50 feet; thence northerly 23.55 feet along said curve through a
central angle of 1416’32" to the beginning of a reverse curve concave to the southwest
and having a radius of 105.50 feet; thence northerly 38.36 feet along said curve through a
central angle of 2049’50" to the beginning of a compound curve concave to the
southwest and having a radius of 537.50 feet; thence northwesterly 99.39 feet along said
curve through a central angle of 1035’42" to the beginning of a reverse curve concave to
the northeast and having a radius of 44.50 feet; thence northerly 21.25 feet along said
Page 1 of 3
curve through a central angle of 27’21’33" to a point of cusp with a curve concave to the
west and having a radius of 16.00 feet, a radial line to the beginning of said curve bears
South 2004’16" West; thence easterly, northerly and westerly 54.80 feet along said
curve through a central angle of 19615’01" to a point of cusp with a curve concave to
the east and having a radius of 40.00 feet, a radial line to the beginning of said curve
bears North 6348’59" West; thence northerly 7.94 feet along said curve through a
central angle of 11’2223"; thence North 3733’24" East 2.88 feet to the northwest
corner of said deed (2012101548); thence South 87’55 ’29" East, 149.85 feet to a point on
the westerly right of way line of "Webster Street", also being State Route 260 as
described within a Deed from the Regents of the University of California recorded May
28, 1959 in Book 9041 of Official Records of Alameda County, at Page 221, said point
also being the most westerly corner of said Parcel (9041 OR 221); thence along the
westerly line of "Mariner Square Loop" as described within said relinquishment
(Document No. 70-132646) North 2317’30" West, 59.44 feet to the beginning of non-
tangent curve concave northeasterly having a radius of 31.50 feet, a radial line to the
beginning of said curve bears South 23’17’30" East; thence westerly, northwesterly and
northerly along the westerly line of "Mariners Square Loop" an arc length of 54.05 feet
through a central angle of 9818’13"; thence continuing along said westerly line of
"Mariners Square Loop" South 1459’17" East, 184.49 feet; thence leaving said westerly
line of "Mariners Square Loop" along a line South 7528’25" West, 2.56 feet to a point,
said point also lying on the back of a constructed concrete curb; thence continuing along
said back of curb the following 14 courses: (1) South 1449’16" East, 39.98 feet to the
(2) beginning of a curve concave northwesterly having a radius of 205.50 feet, a radial
line to the beginning of said curve bears North 75’10’44" East; thence southwesterly
along said curve an arc length of 106.96 feet through a central angle of 2949’22"; (3)
South 1500’06" West, 23.78 feet to the (4) beginning of a curve concave northwesterly
having a radius of 150.50 feet, a radial line to the beginning of said curve bears South
7459’54" East; thence southwesterly along said curve an arc length of 26.28 feet through
a central angle of 1000’15"; (5) South 2500’21" West, 24.53 feet to the (6) beginning
of a curve concave southwesterly having a radius of 150.50 feet, a radial line to the
beginning of said curve bears South 6459’39" East; thence southwesterly along said
curve an arc length of 29.92 feet through a central angle of 1123’20"; (7) South
3623’41’ West, 12.40 feet to the (8) beginning of a curve concave easterly having a
radius of 49.50 feet, a radial line to the beginning of said curve bears North 53’36’19"
West; thence southerly and southeasterly along said curve an are length of 69,54 feet
through a central angle of 8029’49" to the (9) beginning of a Reverse Curve concave
southwesterly having a radius of 532.50 feet; thence southeasterly along said curve an are
Page 2 of 3
length of 91.92 feet through a central angle of 953’24" to the (10) beginning of a
Compound Curve concave southwesterly having a radius of 100.50 feet; thence
southwesterly along said curve an arc length of 36.54 feet through a central angle of
2049’51" to the (11) beginning of a Reverse Curve concave easterly having a radius of
99.50 feet; thence southeasterly along said curve an arc length of 24.79 feet through a
central angle of 1416’32" to the (12) beginning of a non-tangent curve concave
southwesterly having a radius of 521.23 feet, a radial line to the beginning of said curve
bears North 6218’09" East; thence southerly along said curve an arc length of 168.56
feet through a central angle of 1831’43" to the (13) beginning of a non-tangent curve
concave northeasterly having a radius of 212.50 feet, a radial line to the beginning of said
curve bears South 8050’02" West; thence southeasterly along said curve an arc length of
127.08 feet through a central angle of 3415’54" to the (14) beginning of a Compound
Curve concave northeasterly having a radius of 182.27 feet; thence southeasterly along
said curve an arc length of 28.81 feet through a central angle of 903’26"; thence leaving
said back of curb North 3730’42" East, 5.00 feet to the True Point of Beginning.
Containing an area of 13,563 square feet (0.31 acres), more or less.
Bearing and Distances referred to hereon are based on the California Coordinate System
of 1983, Zone III. Distances shown are grid distances; multiply distances by 1.0000705 to
obtain ground level distances.
J\ND
Exp.9-3O-.L
NO.6925 1*
Page 3 of 3
2.56’
S14"49’16"E -
-_.,... S75’28’25"W
39.98’
7 \S f)
- ’ t=29’49’22"
R=2O5.5O’
L=106.96’ I ’L=98’18’13" a. t S15’00’06"W 23.78’-\ / , R=31.50’
_)__ " . L=54.05’
a- cZ.1 S
J Cl O-.j S8755’29"E
L4
NO349’15"E(R)V C7 Ci1 7233’Q
/C5
LINE TABLE
LINE BEARING LENGTH
Li S37’30’42"W(R) 2.50’
L2 N3733’24"E 2.88’
L3 S2500’21 "W 24.53’
L4 S36 -2.3’41 "W 12.40’
L5 N3730’42"E 5.00’
CURVE TABLE
CURVE DELTA RADIUS LENGTH
Ci 22’13’54" 174.77’ 67.81’
C2 9’03’25" 177.27’ 28.02’
C3 1 14’16’32" 94.50’ 23.55’
C4 2049’50" 105.50’ 38.36’
C5 10’35’42" 537.50’ 99.39’
C6 27’21’33" 44.50’ 21,25’
07 1 196’15’01" 16.00’ 54.80’
C8 1 i’22’23" 40.00’ 7.94’
C9 10’00’15" 150.50’ 26.28’
010 1123’20" 150.50’ 29.92’
Cii 80’29’49" 49.50’ 69.54’
012 9’53’24" 532.50’ 91.92’
013 2049’51" 100.50’ 36.54’
014 14’16’32" 99.50’ 24.79’
015 903’26" 182.27’ 28.81’
’
I ’
C4
C14-.-Y
\.
C v
Ju
I
Ii
I
U
.1
N23’ 1 7’30"W
-59.44’
C’
Cp
’0
o.jL1
C 1
L5
[ZJIJ
Bellecci & Associates, Inc.
Civil Engineering Landsurvcylng
2290 04.,nond 8ouI.vsrd, Sult 100 Concord, CA 94520
Phon (925) 685-4569 Fox (925) 685-4838
DATE: 06/12/13 1 SCALE: 1 "=100’
PROJECT NO.: 11010 ISHEET 1 OF 1
EXHIBIT B
Exhibit B - Catellus Remnant Parcel - City Property Purchase Price
Reduction to Value for City Easements
Easement on City Property for Future Road Widening 41,727
Easement on City Property for existing AMP line 6,482
Easement on City Property for future sidewalk to Webster tube 6,482
Total Reduction to Value for City Easements 54,691
Landscape Maintenance Costs
Square Feet of Landscape Area within City Property 7,475
Price Per Square Foot of Landscape Maintenance, per month 0.04
Total Landscape Maintenance Costs within City Property, per month 299
Net Present Value of Maintenance Costs
Total Maintenance Per Month On City Property 299
Annual Cost Escalator on Maintenance 3%
Discount Rate 6%
Net Present Value (30 Years) 67,101
Net Land Value
Estimated Unencumbered Market Value
Less Reduction to Value for City Easements (54,691)
Less Net Present Value of Maintenance Costs (67,101)
Net Land Value* (1,793)
Proposed Purchase Price $0.00
"Buyer is incurring costs to install landscaping, sidewalk, curb, gutter, and street lights which further reduces net land value
***
I,theundersigned,hereby foregoingOrdinancewasdulyandregularly
adoptedandpassedbytheCouncilCityAlamedainaregularmeetingassembledonthe
3rd dayofSeptember,2013,bythe followinz votetowit:
AYES:
NOES:
ABSENT:
ABSTENTIONS:
INWITNESS,WHEREOF,havehereuntoset
thisdayofSeptember,2013.
Daysog,EzzyAshcraft,TamandMayor
handandaffixedtheofficialsealofsaidCity
LaraWeisiger,City
CityofAlameda