Ordinance 3165CITY OF ALAMEDA ORDINANCE NO. 3165
New Series
AUTHORIZING THE CITY MANAGER TO: (1) EXCUTE A
MEMORANDUM OF UNDERSTANDING, QUITCLAIM DEED AND ALL
OTHER NECESSARY DOCUMENTS BETWEEN THE CITY OF ALAMEDA
AND THE UNITED STATES OF AMERICA ACTING BY AND THROUGH
THE U.S. ARMY CORPS OF ENGINEERS TO ACQUIRE 94 PARCELS
ON THE ALAMEDA SIDE OF THE OAKLAND INNER HARBOR TIDAL
CANAL (`TIDAL CANAL ") AND (2) EXECUTE PURCHASE AND SALE
AGREEMENTS, QUITCLAIM DEEDS AND ALL OTHER NECESSARY
DOCUMENTS BETWEEN THE CITY OF ALAMEDA AND VARIOUS
PURCHASERS TO SELL APPROXIMATELY 92 PARCELS ON THE
TIDAL CANAL AT FAIR MARKET VALUE
WHEREAS, the U.S. Army Corps of Engineers (the "Corps ") excavated, dredged,
and created the Oakland Inner Harbor Tidal Canal (the "Tidal Canal ") between 1882-
1905, which is a waterway approximately 1.8 miles long and 400 feet wide and connects
the Oakland Estuary with the San Leandro Bay from approximately 1,800 feet northwest
of the Park Street Bridge to approximately 2,300 feet south of High Street Bridge. The
Corps has retained fee title ownership of the Tidal Canal since its creation. The southern
edge of the Alameda side of the Tidal Canal now includes uplands and bulkheads that
have been utilized to varying degrees by adjacent private property owners; and
WHEREAS, in 1990, the U.S. Congress authorized the Corps to transfer the Tidal
Canal at no cost to the cities of Alameda and Oakland through the Water Resources
Development Act ( "WRDA ") of 1990, as amended by WRDA 1996, 2007, and 2014; and
WHEREAS, starting in 2000, the Corps instituted a moratorium on issuing
regulatory permits or real estate licenses for any repairs, upgrades, improvements or new
construction along the Tidal Canal, with the exception of emergency repairs, (the
"Permitting Moratorium ") to encourage the City of Alameda (the "City ") to accept the
Alameda side of the Tidal Canal. The Permitting Moratorium has prevented repairs and
improvements to existing structures along the waterfront, which has negatively affected
adjacent property owners and has limited the City's ability to enforce code requirements
along the Tidal Canal; and
WHEREAS, the Corps has agreed to take all reasonable steps necessary to
effectuate the transfer, including filing a tentative map application under the Subdivision
Map Act (CA Gov. Code § §66410- 66413.5) to divide the Tidal Canal into approximately
105 individual parcels to facilitate the transfer to the City and the immediate subsequent
transfer of portions of the Alameda side of the Tidal Canal to certain adjacent property
owners. The Corps also has agreed to lift the Permitting Moratorium on the Alameda side
of the Tidal Canal once the property is transferred out of federal ownership; and
WHEREAS, pursuant to the WRDA as amended, the Corps desires to convey (at
no costs) fee title to 94 parcels on the Alameda side of the Tidal Canal through execution
of a Memorandum of Understanding (" MOU ") and a Quitclaim Deed ( "Army Deed ") to the
City; out of the 99 lots, the Corps desires to transfer Parcels 2 and 4 through 96 to the
City (the "Transferred Property ") and to reserve and retain ownership of Parcels 1
(Oakland side of the canal), 3 (property adjacent to the federally -owned Navy Operational
Support Center), and 103 through 105 (footings for the High Street Bridge, the Miller -
Sweeney Bridge and the Fruitvale Rail Bridge and the Park Street Bridge) as depicted in
the Tentative Map; and
WHEREAS, the City is authorized and empowered to enter into agreements for
the acquisition and disposition of real property in the City of Alameda; and
WHEREAS, Article XVI of the California Constitution prohibits the City prohibits the
City from selling property for less than its fair market value as such would be a gift of
public funds; and
WHEREAS, the City has obtained an appraisal report from Wafts, Cohn and
Partners, Inc. a licensed appraisers who determined the fair market value of the
Transferred Property and the City intends to dispose of the Transferred Property at its fair
market value; and
WHEREAS, an application was made cm June 1, 2016, by City staff on behalf of
the Corps requesting approval to subdivide105 lots out of the approximately 85 -acre Tidal
Canal; and
WHEREAS, on June 1, 2016, the City published a Draft Initial Study /Negative
Declaration ( "IS /ND ") for the OIHTC Project in accordance with the California
Environmental Quality Act ( "CEQA "), which addresses all potential environmental impacts
associated with the proposed transfer and subsequent transfers into private ownership,
amendments to the E, Estuary District, and the proposed subdivision map application;
and
WHEREAS, the Planning Board held a public hearing on this application on July
11, 2016 and unanimously recommended that the City Council approve the Tentative
Map; and
WHEREAS, by Resolution No. 15204, the City Council previously certified the
Negative Declaration under the California Environmental Quality Act ( "CEQA "), California
Public Resources Code Section 21000 et seq. and adopted written findings.
NOW THEREFORE, BE IT ORDAINED by the City Council of the City of Alameda
( "City Council ") that after hearing all qualified and interested persons and receiving and
considering all relevant evidence, finds and determines as follows:
Section 1. The City Council hereby delegates to the City Manager the authority to:
execute the Quitclaim Deed, substantially in the form attached hereto as Exhibit A;
execute the Memorandum of Understanding substantially in the form attached hereto as
Exhibit B; to execute auxiliary documents and to perform any and all acts necessary or
desirable to consummate the acquisition and accept on behalf of the City the acquisition
of the Army Corps' fee title interest in the Transferred Property.
Section 2. The City Council hereby delegates to the City Manager the authority to:
execute Purchase and Sale Agreements containing the price and terms for the City's sale
of individual parcels from the City to private purchasers at fair market value, substantially
in the form attached hereto as Exhibit C; execute quitclaim deeds transferring the City's
fee title interest in said parcels; and to execute auxiliary documents and to perform any
and all acts necessary or desirable to consummate the disposition of the City's fee title
interest in portions of the Transferred Property to private purchasers at fair market value.
Section 3. If any portion, section, subsection, paragraph, subparagraph, sentence,
clause, phrase or application of this Ordinance is held invalid or inapplicable by a final
judgment of a court of competent jurisdiction, such decision shall not affect the validity or
applicability of any other part of this Ordinance.
Section 4., This Ordinance shall be in full force and effect from and after the expiration of
thirty (30) days from the date of its final passage.
Presiding Officer of t 6 Council
Attest:
Lara Weisiger, City Jerk
Exhibit A
U.S. ARMY CORPS OF ENGINEERS
OFFICIAL BUSINESS
REQUEST DOCUMENT BE RECORDED
AND EXEMPT FROM RECORDING FEES
PER GOVERNMENT CODE 6103
Recording requested by and
when recorded mail to:
REAL ESTATE DIVISION
U.S. ARMY CORPS OF ENGINEERS
SACRAMENTO DISTRICT
1325 J STREET, 8TH FLOOR
SACRAMENTO, CA 95812 -2922
Space above this line reserved for Recorder's use
This deed was reviewed by:
Jesse Anderson
Assistant District Counsel
U.S. Army Corps of Engineers
San Francisco District
QUITCLAIM DEED
PARCELS 2 and 4 THROUGH 96
ALAMEDA SIDE OF THE OAKLAND INNER HARBOR TIDAL CANAL
ALAMEDA COUNTY, CALIFORNIA
This QUITCLAIM DEED for Parcels 2 and 4 through 96 (hereinafter the "Deed ") within
the Oakland Inner Harbor Tidal Canal is made and entered into by and between the UNITED
STATES OF AMERICA (hereinafter the "GRANTOR" or the "UNITED STATES "), acting by
and through the Director of Real Estate, U. S. Army Corps of-,Engineers, under authority of the
provisions contained in the Water Resources Development Act (WRDA) of 1990, Pub. L. No. 101-
640 § 205, as amended by WRDA 1996, Pub. L. No. 104 -303 § 501(b), WRDA 2007, Pub. L. No.
110 -114 § 3182(b), and WRDA 2014, Pub. L. No. 113 -121 § 6005(a) and the CITY OF
ALAMEDA, a charter city and municipal corporation (hereinafter the "GRANTEE ") (each a
"Party" and collectively the "Parties ").
WITNESSETH THAT:
WHEREAS, the GRANTOR does hereby REMISE, RELEASE, AND FOREVER
QUITCLAIM unto the GRANTEE, its successors and assigns, all rights, title, and interest of the
GRANTOR in and to that certain 42 acres of land, more or less, containing 94 parcels, situated,
lying and being in the County of Alameda, State of California. The approximately 42 -acre, 94-
parcel property herein conveyed is identified as Parcels 2 and 4 through 96, particularly depicted
by the subdivision maps attached as Exhibit A, which map has been duly recorded on the
day of , 2016 in the official records of the Alameda County Records Office and made
a part hereof (the transferred parcels are referred to individually each as a "Parcel" and collectively
referred to as the "Property ").
WITNESSETH THAT the GRANTOR does hereby RESERVE and RETAIN ALL
RIGHT, TITLE, AND INTEREST IN Parcels 3 and 97 through 99 and the Unsurveyed Remainder
Area 1 within the Oakland Inner Harbor Tidal Canal, which contains the Oakland side of the canal
(Unsurveyed Remainder Area 1), property adjacent to the federally -owned Navy Operational
Support Center (Parcel 3), and bridge footings for the High Street Bridge (Parcel 97), the Miller -
Sweeney Bridge and the Fruitvale Rail Bridge (Parcel 98) and the Park Street Bridge (Parcel 99),
contained within the Oakland Inner Harbor Tidal Canal.
SUBJECT TO all valid and existing reservations, covenants, conditions, restrictions, and
easements, including, but not limited to, rights -of -way for railroads, highways, pipelines, and
public utilities, if any, whether of public record or not, and such rights -of -way or other rights as
are determined to be necessary for the operation and maintenance of the authorized Federal
Channel.
TO HAVE AND TO HOLD the Property granted herein to the GRANTEE, its successors
and assigns, together with all and singular the appurtenances, rights, powers, and privileges
thereunto belonging or in anywise appertaining, and all the estate, rights, title, interest, or claim
whatsoever of the GRANTOR, either in law or in equity, and subject to the reservations, covenants,
conditions, and restrictions set forth in the Deed.
AND IT IS FURTHER AGREED AND UNDERSTOOD by and between the Parties
hereto that the GRANTEE, by its acceptance of the Deed and the GRANTOR, by its granting of
the Deed, and as part of their collective consideration for the conveyance and acceptance made
herein, covenants and each promises for itself, its successors and assigns, forever, that the Deed is
made and accepted upon each of the reservations, covenants, conditions, and restrictions which
shall be binding upon and enforceable against the GRANTEE, its successors and assigns, and the
GRANTOR in perpetuity, as stated in the Deed, and as enforceable by the GRANTOR, the
GRANTEE, or other interested parties, as applicable, and as may be allowed by law. The
reservations, covenants, conditions, and restrictions set forth herein are a binding servitude on the
Property and shall be deemed to run with the land. The failure to include the reservations,
covenants, conditions, and restrictions in subsequent conveyances of the Property or portions
thereof will not abrogate the status of these reservations, covenants, conditions, and restrictions as
binding upon the GRANTOR and the GRANTEE, and the GRANTEE'S successors and assigns.
1. CERCLA NOTICE
2
For the Property, the GRANTOR provides the following notice, description, and covenants
and retains the following access rights:
A. Notices Pursuant to Section 120(h)(3)(A)(i)(I) and (II) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.0 §§
9620(h)(3)(A)(i)(I) and (II):
Pursuant to Section 120(h)(3)(A)(i)(I) and (II) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.0 §§ 9620(h)(3)(A)(i)(I) and (II)),
available information regarding the type, quantity, and location of hazardous substances and the
time which such substances were stored, released, or disposed of on the Property, as defined in
section 120(h), is provided in Exhibit B, attached hereto and made a part hereof.
B. Description of Remedial Action Taken, if Any, Pursuant to Section
1230(h)(3)(A)(i)(III) of the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. § 9620(h)(3)(A)(i)(III)):
Pursuant to section 120(h)(3)(A)(i)(III) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (42 U.S.C. § 9620(h)(3)(A)(i)(III)), a description of the
remedial action taken, if any, on the Property is provided in Exhibit B, attached hereto and made
a part hereof.
2. CERCLA COVENANT
A. Covenant Pursuant to Section 120(h)(3)(A)(ii) and (B) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. §§
9620(h)(3)(ii) and (B)):
Pursuant to Section 120(h)(3)(A)(ii) and (B) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. §§ 9620(h)(3)(ii) and (B)), the
United States warrants that:
(1) all remedial action necessary to protect human health and the environment with
respect to any hazardous substance identified pursuant to section 120(h)(3)A)(i)(I) of the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 remaining on
the Property has been taken before the date of this Deed, and
(2) any additional remedial action found to be necessary after the date of this Deed
shall be conducted by the UNITED STATES.
This warranty shall not apply in any case in which the person or entity to whom the
property is transferred is a potentially responsible party with respect to such property. For
purposes of this warranty, The Grantee shall not be considered a potentially responsible party
solely due to the presence of a hazardous substance remaining on the property on the date of this
instrument, provided that The Grantee has not caused or contributed to a release of such
hazardous substance.
3. CERCLA RIGHT OF ACCESS
A. Access rights pursuant to section 120(h)(3)(A)(iii) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.0
§9620(h)(3)(A)(iii))):
(1) The United States retains and reserves a perpetual and assignable easement and
right of access on, over, and through the Property, to enter upon the Property in any case in which
a remedial action or corrective action is found to be necessary on the part of the UNITED STATES,
without regard to whether such remedial action or corrective action is on the Property or on
adjoining or nearby lands. Such easement and right of access includes, without limitation, the
right to perform any environmental investigation, survey, monitoring, sampling, testing, drilling,
boring, coring, test - pitting, installing monitoring or pumping wells or other treatment facilities,
response action, corrective action, or any other action necessary for the UNITED STATES to meet
its responsibilities under applicable laws, and as provided for in this instrument. Such easement
and right of access shall be binding on the GRANTEE, its successors and assigns, and shall run
with the land.
(2) In exercising such easement and right of access, the UNITED STATES shall
provide the GRANTEE or its successors or assigns, as the case may be, with reasonable notice of
its intent to enter upon the Property and exercise its rights under this clause, which notice may be
severely curtailed or even eliminated in emergency situations. The UNITED STATES shall use
reasonable means to avoid and to minimize interference with the GRANTEE'S and the
GRANTEE'S successors' and assigns' quiet enjoyment of the Property. At the completion of
work, the work site shall be reasonably restored. Such easement and right of access includes the
right to obtain and use utility services, including water, gas, electricity, sewer, and communications
services available on the Property at a reasonable charge to the UNITED STATES. Excluding the
reasonable charges for such utility services, no fee, charge, or compensation will be due the
GRANTEE, nor its successors and assigns, for the exercise of the easement and right of access
hereby retained and reserved by the UNITED STATES.
(3) In exercising such easement and right of access, neither the GRANTEE nor its
successors and assigns, as the case may be, shall have any claim at law or equity against the
UNITED STATES or any officer or employee of the UNITED STATES based on actions taken
by the UNITED STATES or its officers, employees, agents, contractors of any tier, or servants
pursuant to and in accordance with this clause; provided, however, that nothing in this paragraph
shall be considered a waiver by the GRANTEE or its successors and assigns of any remedy
available under the Federal Tort Claims Act.
4. "AS IS" CONDITION
A. The GRANTEE acknowledges that it has inspected or has had the opportunity to inspect
the Property and accepts the condition and state of repair of the Property. The GRANTEE
understands and agrees that the Property is conveyed in its "AS IS" condition without any
representation, warranty, or guaranty by the GRANTOR as to quantity, quality, title, character,
condition, size, or kind, or that the same is in a suitable condition or fit to be used for the purpose(s)
intended by the GRANTEE, and no claim for allowance or deduction upon such grounds shall be
considered.
B. No warranties, either express or implied, are given with regard to the condition of the
Property including, without limitation, whether the Property does or does not contain asbestos or
lead -based paint. The GRANTEE shall be deemed to have relied solely on its own judgment in
assessing the overall condition of the Property including, without limitation, the presence of any
asbestos, lead -based paint, or other conditions on the Property. The failure of the GRANTEE to
inspect or to exercise due diligence to be fully informed as to the condition of the Property shall
not constitute grounds for any claim or demand against the UNITED STATES.
C. Nothing in this "AS IS" condition provision shall be construed to modify or negate the
GRANTOR'S obligation under the covenant pursuant to section 120(h)(3)(A)(ii) and (B) of the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. §§
9620(h)(3)(A)(ii) and (B)), or any other statutory obligations.
5. HOLD HARMLESS
A. To the extent authorized by law, the GRANTEE, its successors and assigns, covenant
and agree to indemnify and hold harmless the GRANTOR, its officers, agents, and employees
from (1) any and all claims, damages, judgments, losses, and costs, including fines and penalties,
arising out of the violation of the covenants, conditions, and restrictions in this Deed by the
GRANTEE, its successors and assigns, as applicable, and (2) any and all claims, damages and
judgments arising out of, or in any manner predicated upon, exposure to asbestos, lead -based
paint, or other condition on any portion of the Property related to a discharge or exposure taking
place after the date of conveyance and during the GRANTEE'S, its successors' and assigns'
ownership of such portion of the Property.
B. The GRANTEE, its successors and assigns, covenant and agree that the GRANTOR
shall not be responsible for any costs associated with modification or termination of the
covenants, conditions, and restrictions in this Deed including, without limitation, any costs
associated with additional investigation or remediation of asbestos, lead -based paint, or other
condition on any portion of the Property related to a discharge or exposure taking place after the
date of conveyance and during the GRANTEE'S, its successors' and assigns' ownership of such
portion of the Property.
C. Nothing in this Hold Harmless provision shall be construed to modify or negate the
GRANTOR'S obligation under the covenant pursuant to sections 120(h)(3)(A)(ii) and (B) of the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C.
§§ 9620(h)(3)(A)(ii) and (B)), or any other statutory obligations.
6. POST - TRANSFER DISCOVERY OF CONTAMINATION
A. If an actual or threatened release of a hazardous substance or petroleum product is
discovered on the Property or any individual Parcel(s), after the date of conveyance, the
GRANTEE, its successors or assigns, shall be responsible for such release or threatened release
of such newly discovered substance, unless the GRANTEE, its successors or assigns is able to
demonstrate that such release or newly discovered hazardous substance or petroleum product
was due to the GRANTOR'S activities, use, or ownership of the Property. If the GRANTEE, its
successors or assigns, believes the discovered hazardous substance or petroleum product was due
0
to the GRANTOR'S activities, use or ownership of the Property, the GRANTEE, its successors
or assigns will immediately secure the site and notify the GRANTOR of the existence of the
hazardous substance or petroleum product and the GRANTEE, its successors and assigns shall
not further disturb or allow the disturbance of such hazardous substance or petroleum product
without the prior written permission of the GRANTOR.
B. The GRANTEE, its successors and assigns, as part of the consideration for the
conveyance of the Property or any individual Parcel(s), agree to release the GRANTOR from
any liability or responsibility for any claims arising solely out of the release or threatened release
of any hazardous substance or petroleum product on any portion of the Property related to a
discharge or exposure occurring after the date of the delivery and acceptance of this Deed, where
such substance or product was placed on the Property or any individual Parcel(s) by the
GRANTEE, its successors, assigns, employees, invitees, agents or contractors, after the
conveyance. This paragraph shall not affect the GRANTOR'S responsibility to conduct
response actions or corrective actions that are required by applicable laws, rules and regulations.
7. NON - DISCRIMINATION COVENANT
The GRANTEE, its successors and assigns, covenant that such GRANTEE, its successors
and assigns, shall not discriminate upon the basis of race, creed, color, religion, sex, disability,
age, or national origin in the use, occupancy, sale or lease of any Parcels(s), or in its employment
practices conducted on or in relation to the Parcel(s), as long as it holds such interest to the
Parcel(s). For the avoidance of doubt, the foregoing covenant shall constitute, with respect to each
and every Parcel, a "covenant that runs with the land" that applies to and that obligates the
GRANTEE, its successors and assigns. The UNITED STATES shall be deemed a beneficiary of
this covenant without regard to whether it remains the owner of any land or interest therein in the
locality of the Parcel(s) and shall have the sole right to enforce this covenant in any court of
competent jurisdiction.
8. ANTI- DEFICIENCY ACT
The GRANTOR's obligation to pay or reimburse any money under the Deed is subject to
the availability of funds appropriated for this purpose to the Department of the Army and nothing
in the Deed shall be interpreted to require obligations or payments by the GRANTOR in violation
of the Anti- Deficiency Act, 31 U.S.C. § 1341.
9. NO WAIVER
The failure of the GRANTOR to insist in any one or more instances upon complete
performance of any obligation of the GRANTEE, its successors or assigns required by the
covenants, conditions, or restrictions set forth in the Deed shall not be construed as a waiver or a
relinquishment of the GRANTOR'S right to the future performance of any such obligation of the
GRANTEE, or its successors or assigns, required by said covenants, conditions, and restrictions,
and such obligations of the GRANTEE, its successors and assigns, shall continue in full force and
effect.
NO CONDITIONS FOLLOW
11
IN WITNESS WHEREOF the GRANTOR has caused the Deed to be executed in
its name by the Director of Real Estate, U.S. Army Corps of Engineers, this day of
.2016.
UNITED STATES OF AMERICA
wo
Brenda M. Johnson - Turner
Director of Real Estate, U.S. Army Corps of Engineers
ACKNOWLEDGEMENT
CITY OF WASHINGTON )
) ss:
DISTRICT OF COLUMBIA )
I, , a notary public in and for the District of
Columbia, do certify that Brenda M. Johnson - Turner, Director of Real Estate, U.S. Army Corps
of Engineers, known to me or proven through satisfactory evidence of identity to be the person
whose name is subscribed to the forgoing document, appeared in person and acknowledged before
me that the signature on the document was voluntarily affixed by her for the purposes therein
stated, on this date, on behalf of the UNITED STATES OF AMERICA and that she had due
authority to sign the document in the capacity therein stated.
Given under my hand and seal this day of , 2016.
Notary Public
Notary Registration No:
My commission expires:
(IMPRESS YOUR OFFICIAL NOTARY PUBLIC SEAL OF OFFICE ON
THIS CERTIFICATE OF ACKNOWLEDGMENT)
H.
ACCEPTANCE OF CONVEYANCE
IN WITNESS WHEREOF the GRANTEE, acting by and through its City Manager,
hereby accepts the conveyance herein subject to the reservations, covenants, conditions and
restrictions contained in the Deed, this day of , 2016.
CITY OF ALAMEDA
a charter city and municipal corporation
IM
Jill Keimach
City Manager, City of Alameda
ACKNOWLEDGEMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
On before me, , (name of
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 who acknowledged to me that he /she /they executed the same in their authorized
capacity(ies), and by his /her /their signature(s) on the instrument the person(s), or 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 of Notary)
CITY ATTORNEY'S CERTIFICATE
I, Janet Kern, acting as Legal Counsel for the City of Alameda, here referred to as
the "GRANTEE," do hereby certify that I have examined the foregoing Deed and the preceding
taken by the GRANTEE relating thereto and find that the acceptance of this Deed by the
GRANTEE has been duly authorized and that the GRANTEE's execution hereof is in all
respects due and proper and in accordance with the laws of the State of California, and further
that, in my opinion, the Deed constitutes a legal and binding compliance obligation of the
GRANTEE in accordance with the terms thereof.
Dated at this day of , 2016
Janet Kern, City Attorney
10
EXHIBIT A
Final Map of Parcels 2 through 4 -96
11
EXHIBIT B
Hazardous Substances
12
Exhibit B
CONFIDENTIAL — DRAFT FOR REVIEW
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Alameda
City Attorney's Office
2263 Santa Clara Avenue, #280
Alameda, CA 94501 -4456
Attn: Andrico Penick
MEMORANDUM OF UNDERSTANDING
FOR TRANSFER OF THE
OAKLAND INNER HARBOR TIDAL CANAL
THIS MEMORANDUM OF UNDERSTANDING (this "Agreement" or this "MOU ") is made and
entered into as of October , 2016, by and between the City of Alameda, a charter city and municipal
corporation (the "City "), and the U.S. Army Corps of Engineers, (a federal agency acting under the U.S.
Department of the Army) (the "Corps ") (each a "Party" and collectively the "Parties ") and reflects the intent
of the Parties with respect to the transfer of the Alameda side of the Oakland Inner Harbor Tidal Canal (as
defined below) from the Corps to the City.
RECITALS
A. On October 20, 1884, the Superior Court of Alameda granted to the Corps, by Judicial
Decree No. 3590, ownership of a strip of land connecting the cities of Alameda and Oakland for purposes
of dredging and excavating a tidal canal out of uplands, which property became known as the Oakland
Inner Harbor Tidal Canal and is more specifically described in the map attached as "Attachment A" to this
MOU (the "Tidal Canal "). Between approximately 1884 -1905, the Corps excavated, dredged, and created
the Tidal Canal, which is a waterway approximately 1.8 miles long and 400 feet wide and connects the
Oakland Estuary with the San Leandro Bay. The Corps has retained fee title ownership of the Tidal Canal
since its creation.
B. The Corps desires to remise, release, and forever quitclaim unto the City, its successors
and assigns, all rights, title, and interest of the Corps in 94 parcels along the Alameda side of the Tidal
Canal, identified as Parcels 2 and 4 through 96, particularly depicted by the subdivision maps attached as
"Exhibit B ", which map has been duly recorded on the day of , 2016 in the official
records of the Alameda County Records Office and made a part hereof (the transferred parcels are referred
to individually each as a "Parcel" and collectively referred to as the "Pro e ").
C. The Corps desires to reserve and retain ownership of Parcels 3, 97 through 99 and the
Unsurveyed Remainder Area 1, which contains the Oakland side of the canal ( Unsurveyed Remainder Area
1), property adjacent to the federally -owned Navy Operational Support Center (Parcel 3) and bridge
footings for the High Street Bridge (Parcel 97), the Miller- Sweeney Bridge and the Fruitvale Rail Bridge
(Parcel 98) and the Park Street Bridge (Parcel 99) as particularly depicted on the subdivision map attached
as Exhibit B. These five (5) parcels are collectively referred to as the ( "Excluded Propert
D. The southern edge of the Property now includes uplands and bulkheads that have been
utilized to varying degrees by adjacent private property owners.
1
City of Alameda and US Army Corps
Memorandum of Agreement
Oakland Inner Harbor Tidal Canal Transfer
E. During its ownership, the Corps has issued various approvals and authorizations to adjacent
property owners to use portions of the Property through real estate licenses, leases and regulatory permits.
F. In 1990, the U.S. Congress authorized the Corps to transfer the Tidal Canal at no cost to
the cities of Alameda and Oakland through the Water Resources Development Act ( "WRDA ") of 1990, as
amended by WRDA 1996, 2007, and 2014. The Corps has been negotiating with the cities of Alameda and
Oakland since 1990 to transfer the Tidal Canal out of federal ownership.
G. Starting in 2000, the Corps instituted a moratorium on issuing regulatory permits or real
estate licenses for any repairs, upgrades, improvements or new construction, with the exception of
emergency repairs, within the Tidal Canal (the "Permitting, Moratorium "). The Permitting Moratorium has
prevented repairs and improvements to existing structures and docks along the waterfront that did not fit
within the emergency repair exception, which has affected adjacent property owners and the City's code
enforcement program.
H. To lift the Permitting Moratorium and to remove the existing cloud on title along the Tidal
Canal, the City has agreed to accept ownership of the Property from the Corps subject to certain conditions
and, with the intent of transferring portions of the Property immediately to certain adjacent property owners
at fair market value for each subdivided parcel, whichever is higher.
I. The Corps desires to transfer the Property to the City, and has agreed to take all reasonable
steps necessary to effectuate the transfer, including filing a tentative map application under the Subdivision
Map Act (CA Gov. Code § §66410- 66413.5) to divide the Alameda side of the Tidal Canal into
approximately 99 individual parcels prior to transfer to facilitate the immediate subsequent transfer of
portions of the Property to the certain property owners. The filing of the tentative subdivision map
application does not implicitly nor explicitly waive sovereign immunity, and is at no cost to the Corps.
J. On , 2016 the City Council of Alameda (the "City Council ") approved a
tentative map to divide the Property into approximately 99 individual parcels subject to certain conditions
and authorized the City Manager to enter into this MOU ( "City's Initial Approval "). On _
2016, the City Council authorized the, City Manager to (i) accept the Property subject to certain
conditions, and (ii) enter into the subsequent and immediate transfer of portions of the Property to
subsequent purchasers. On , 2016, the City Council approved a Final Map to
divide the Property into approximately 99 individual parcels.
K. On , 2016, the Corps completed the Environmental
Assessment/Finding of No Significant Impact to cover the federal transfer of the Tidal Canal in compliance
with the National Environmental Policy Act (42 U.S.0 § 4321).
L. On , 2016, the Corps completed a Finding of Suitability of Transfer
(the "FOST "), which provides documentation that the Tidal Canal is environmentally suitable for transfer
by deed.
M: To address any potential liability related to environmental contamination, dredging, and
maintenance within the Tidal Canal and to establish the conditions precedent to the City's acceptance of
the Property, the Corps and the City desire to enter into this MOU to outline clearly the intent and
responsibilities of the Parties related to the Tidal Canal and to have this MOU recorded with the deed for
the Property.
2
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
CONFIDENTIAL
AGREEMENT
Based on the mutual covenants and agreements described herein, the City and the Corps hereby
agree as follows:
1. Grant of Property; Acceptance of Property.
(a) As soon as possible after the City's Initial Approval, and no later than thirty (30) days after
City Initial Approval the Corps shall provide the City with a duly executed and acknowledged quitclaim
deed conveying the subdivided Property to the City in the form of "Attachment C" (the "Quitclaim Deed ").
(b) The City shall accept fee title to the Property provided that all of the Conditions Precedent
(defined below in Section 4) have been met, the City Council has approved the Final Map and escrow is
closed (the "Closing Date ").
2. Effective Date. As used herein, the term "Effective Date" shall mean the date on which each Party
has received from the other Party a counterpart signature page to this Agreement.
3. Termination. This Agreement may be terminated prior to close of escrow: (i) by the City for the
Corps' failure to fulfill a Conditions Precedent; (ii) by the Corps for the City's failure to fulfill a Conditions
Precedent; (iii) by the mutual consent of the Parties; or (iv) by the City pursuant to Section 4(d).
(a) Written notice of termination must be delivered to the other Party in accordance with
Section 9(h) and is effective upon receipt. Upon termination, neither Party shall have any legal obligation
to the other with respect to the proposed transaction. However, each side shall be entitled to their original
executed documents in the possession of the other Party or in Escrow and each Party shall take all
reasonable actions necessary and convenient to rescind, terminate or otherwise render ineffective the
terms of this MOU. This obligation shall survive the termination of the MOU.
4. Conditions Precedent to Transfer. The obligation of the City to accept transfer of the Property is
expressly conditioned upon the satisfaction, prior to said transfer, of each of the conditions precedent set
forth in this Section 4 (each a "Condition Precedent" and, collectively, the "Conditions Precedent "), any of
which Conditions Precedent may be waived by the City through its City Manager in his /her sole discretion.
If any of the Conditions Precedent are not met within the specified timeframes below, the City Manager, in
his/her sole and absolute discretion may elect one or more of the following remedies ( "City Remedies "):
(i) terminate this MOU and refuse to accept the Property; (ii) extend any applicable deadlines in order to
afford the Corps more time to comply with such Conditions Precedent and proceed with the transfer; or (iii)
partially or fully waive the fulfillment of the Condition Precedent and proceed with the transfer. If this
Agreement is terminated, the City, shall be under no legal obligation to accept the transfer of the Property.
(a) Delivery of All Documents. Within the timeframes established in Section 8 below but no
later than thirty (30) days after the City's Initial Approval, the Corps shall provide to the City all of the
documents necessary to effect the transfer of the Property and closing of the transfer transaction
(collectively, the "Closing Documents "), including:
(i) A fully executed FOST, including all related documents;
(ii) Two fully executed original versions of this MOU ( "Fully Executed MOU ");
(iii) The Quitclaim Deed;
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
CONFIDENTIAL
(iv) A copy of the Moratorium Removal Notice (defined below) establishing that the
Permitting Moratorium has been lifted as described below in Section 4(b);
(v) Copies of any lease termination letters to adjacent property owners or assigned
leases, as applicable, as may be requested by the City pursuant to Section 4(e) hereof; and
(vi) Any other documents deemed necessary by the City, the Corps or the Escrow
Agent (defined below in Section 8(b)) to complete the transaction.
(b) Removal of Permitting Moratorium. No later than thirty (30) days after the City's Initial
Approval, the Corps shall submit to the City a notice addressed to all property owners adjacent to the
Property that the Permitting Moratorium will be removed from all portions of the Property on the Closing
Date (the "Moratorium Removal Notice ")..
(c) Free and Clear Title. If the survey of the Property completed by the City contains any
exceptions to title which are not acceptable to the City in the City Manager's sole and absolute discretion,
then the City Manager shall notify the Corps of any and all objections to same in writing to the Corps no
later than three (3) business days after the Effective Date. Any such objection by the City Manager shall
be deemed to be a title defect ( "Title Defect "). Such notice is referred to herein as the "Notice of Title
Defect." The Corps shall take all reasonable efforts to cure the Title Defects identified by the City Manager
as soon as possible but no later than thirty (30) days from the City's Initial Approval. If the Corps does not
timely cure all Title Defects, the City through its City Manager may elect one or more of the City Remedies.
(d) Subsequent Purchaser Participation. The City shall take all reasonable actions to enter into
with each owner adjacent to the Property or such other interested purchaser, as applicable, (each a
"Subsequent Purchaser ") any purchase and sale agreements, other agreements, instruments and other
documents that may be required by applicable law (collectively, "Subsequent Transfer Documents ") to
transfer 86 parcels of the 94 parcels on the Property (each parcel transfer, a "Subsequent Transfer "). In
the event that there is not a Subsequent Purchaser committed to enter into a Subsequent Transfer for each
of the 86 parcels within sixty (60) days of the City's Initial Approval (the "Subsequent Transfer
Commitment Date "), as determined by the City Manager in his/her sole discretion, the City shall be entitled
(but not obligated) to terminate this Agreement and decline to accept transfer of the Property. If the
Agreement is terminated, the Parties shall follow the termination process in Section 3(a).
(e) Assign or Release Existing Leases With Property Owners. As directed by the City Manager
in his/her sole discretion, the Corps shall, within thirty (30) days of the City's Initial Approval, either
terminate, assign to the City, or retain in place as an approved title exception, any current leases, licenses,
easements or other outgrants applicable to the Property between the Corps, on the one hand, and any tenant,
licensee or easement holder on the other hand (collectively, the "Existing Leases "). In the case of
termination or assignment of an Existing Lease, the Corps shall submit to the City written evidence of such
termination or assignment, reasonably satisfactory to the City Manager. The City shall review and deposit
into escrow.
(f) Truth of Representations and Warranties. Each of the representations and warranties set
forth in Sections 5, 6 and 7 hereof shall be true and correct as of the Effective Date until the Closing Date
(the "Closing Period ").
4
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
CONFIDENTIAL
5. Corps' Representations and Warranties. To induce the City to enter into this Agreement and to
accept the Property pursuant to the terms hereof, the Corps represents and warrants for the benefit of the
City, both as of the Effective Date and at all times during the Closing Period as follows:
(a) Authority. The Corps is duly authorized to enter into this Agreement and has all necessary
lawful authority, and has taken all necessary actions, to: (i) execute this Agreement, (ii) incur the obligations
of the Corps specified herein, and (iii) transfer the Property to the City on the Closing Date in accordance
with the terms hereof.
(b) Authority to Assign or Terminate Existing Leases. The Corps has all necessary regulatory
and legal authority to either terminate or assign to the City the Existing Leases as directed by the City
pursuant to Section 4(e) of this Agreement.
(c) CERCLA Section 120(h). The Corps represents and warrants that all remedial action
necessary to protect human health and the environment with respect to any hazardous substance identified
pursuant to Section 120(h)(3) of the Comprehensive Environmental Response, Cleanup and Liability Act
of 1980 ( "CERCLA ") remaining on the property will have been taken before the date of the Quitclaim
Deed.
6. Corps' Covenants. To induce the City to enter into this Agreement and to accept the Property
pursuant to the terms hereof, the Corps hereby covenants as follows:
(a) Use of All Reasonable Efforts to Complete Transfer. The Corps shall use reasonable
efforts and allocate necessary staffing resources to:
(i) ensure the delivery of the Closing Documents within the Closing Period, which
efforts shall include, but are not limited to, contacting Corps staff and their respective supervisors in the
San Francisco Corps District, the Sacramento Corps District or the Corps Headquarters in Washington D.C.,
as necessary and applicable, to finalize the Closing Documents; and
(ii) prioritize the process of transferring the Property in accordance with the terms
hereof over other projects of the Corps to the greatest extent possible during the Closing Period.
(b) Dredging and Maintenance Obligations. The Corps shall retain any and all dredging and
maintenance obligations required by federal law to maintain navigation within the Tidal Canal and within
the Property. Such dredging and maintenance obligations of the Corps shall remain in effect until such
time as Congress passes legislation relieving the Corps of its obligation to maintain navigation within waters
of the United States.
(c) Indemnification and Defense Related to Environmental Liability. The Corps has
completed Environmental Baseline Reports which confirm that soil at multiple locations along the
commercial /industrial shoreline within the Property are contaminated with petroleum and heavy metals in
excess of regulatory benchmarks for industrial land use. (Environmental Baseline Survey Report,
2016.) ("Existing Environmental Contamination "). The Corps acknowledges that as the
sole historical owner of the Property after 1884, the Existing Environmental Contamination must have been
discharged during the Corps' or predecessor's ownership of the Property.
(i) CERCLA Section 120(h). The Corps shall complete such additional remedial
action as may be found to be necessary after the Closing Date, to the extent authorized by Section 120(h)(3)
of CERCLA ( "CERCLA Remedial Actions "). This covenant will not apply to any remedial action required
5
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
directly as a result of any act of the City or any adjacent developer after the Closing Date that causes a new
release of hazardous substances on the Property.
(ii) Indemnity. The Corps agrees to indemnify, reimburse and hold harmless the City
for any claims brought against the City as the owner of the Property related to remedial actions found to be
necessary after the Closing Date to the extent authorized by Section 124(h)(3) of CERCLA and the Federal
Tort Claims Act (the "FTCA "), 28, U.S.C. § 1346. This indemnity will not apply to any remedial action
required as a direct result of any act of the City or any adjacent developer after the Closing Date that causes
a new release of hazardous substances on the Property.
(iii) Waiver of Environmental Liability. To the fullest extent permitted by applicable
law, e.g., CERCLA and FTCA, and except as otherwise expressly set forth in this Agreement, the Corps
does hereby waive and release the City, its City Council, its boards, its commissions, its officials, and its
employees, agents (including any outside legal counsel retained by the City in connection with this
Agreement and the transfer of the Property), any of the City's successors and assigns (each an " Indemnitee"
and collectively the "Indemnitees ") from any present or future claims and liabilities of any nature arising
from or relating to the presence or alleged presence of hazardous substances in, on, at, from, under or about
the Property, including, without limitation, any claims under or on account of any environmental law,
regardless of whether such hazardous substances are located in, on, at, from, under or about the Property or
any adjacent property prior to or after the Closing Date. In addition, to the fullest extent permitted by
CERCLA and FTCA, the Corps does hereby covenant and agree to defend, indemnify, and hold harmless
each Indemnitee from and against any claims, demands, penalties, fines, liabilities, settlements, damages,
costs or expenses, known or unknown, existing in future, to the extent relating to any hazardous substances
that were placed, located or released on the Property before the Closing Date and, with respect to any such
releases, that existed on the Property prior to the Closing Date, including any action or proceeding brought
or threatened or ordered by governmental authorities.
(d) Waiver and Release. To the fullest extent permitted by applicable law, e.g., CERCLA and
FTCA, the Corps does hereby waive and release the Indemnitees from any future claims related to legal
descriptions of the Property, property boundary disputes, encroachments existing prior to the Closing Date
or the ongoing Dredging and Maintenance Obligations of the Corps.
7. City's Representations and Warranties.
(a) Authority. The City hereby represents and warrants that it is duly authorized to enter into
this Agreement and that it has all necessary lawful authority, and has taken all necessary actions, to execute
this Agreement and to accept transfer of the Property.
(b) Use of All Reasonable Efforts to Complete Transfer. The City shall use reasonable efforts
and allocate necessary staffing resources to facilitate the transfer of the Property within the Closing Period,
which efforts shall include but are not limited to: (i) coordinating with and distributing draft purchase and
sale agreements to all Subsequent Purchasers in advance of the City Approval to expedite and confirm that
all such Subsequent Purchasers have committed to enter into a Subsequent Transfer by the Subsequent
Transfer Commitment Date; (ii) reviewing all applicable environmental reports in a timely manner to avoid
delays; and (iii) prioritizing this transfer process over other projects of the City to the greatest extent
possible during the Closing Period.
8. Closing Process; Escrow.
6
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
CONFIDENTIAL
(a) Closing Process Prior to Escrow. The Parties agree to observe the process outlined below
in order to complete the transfer of the Property (the "Closing Process ").
(i) No later than two (2) business days following the City Approval, the City will
execute two originals of this Agreement ( "City- Executed MOU ") and send the City- Executed MOU to the
Corps for review and execution.
(ii) No later than five (5) days after the Corps receives the City- Executed MOU, the
Corps will execute and send back to the City for review and delivery into escrow two original Fully
Executed MOUs. All other Closing Documents from the Corps will be provided to the City as soon as they
become available during the Closing Period but no later than thirty (30) days after the City's Initial
Approval.
(iii) The City will review the Closing Documents and notify the Corps within five (5)
business days of receiving any Closing Documents of any deficiencies in such Closing Documents (a
"Closing Document Deficiency "). In the event of a Closing Document Deficiency, the City Manager, in
his /her sole discretion may elect to use one or more City Remedies.
(b) Escrow. The Parties agree that an escrow (the "Escrow ") shall be established to facilitate
the Property transfer and the Subsequent Transfers. The City shall take all actions necessary to establish
the Escrow with Chicago Title Company, 675 N. First Street, Suite 300, San Jose, CA 95112 (the "Escrow
Agent "). The Parties agree to enter into any mutually agreeable escrow agreements and other related
documents (collectively, the "Escrow Documents ") as may be reasonably requested or required by the
Escrow Agent to establish the Escrow and give effect to the terms of this MOU.
(c) City Deposits Into Escrow. Once the City has determined that the Closing Documents and
Escrow Documents (if any) are complete and that no uncured Closing Document Deficiencies exist, the
City shall submit the Closing Documents and written escrow instructions (the "Escrow Instructions ") to the
Escrow Agent instructing the Escrow Agent to close the Escrow in accordance with the terms of this
Agreement and such Escrow Instructions.
(d) Close of Escrow. When the contingencies specified in Section 4 hereof have been satisfied
or waived by the City and the Escrow Agent has received all necessary Closing Documents, Escrow
Documents, and Escrow Instructions, the Escrow Agent shall close the Escrow in accordance with the
Escrow Instructions. The Parties shall cooperate with each other and the Escrow Agent to prepare and
execute such further documents (including further escrow instructions) as may be reasonably necessary to
close the Escrow.
9. Miscellaneous.
(a) Integrated Agreement. This Agreement supersedes any prior agreements of the Parties
with respect to the subject matter hereof, whether written or oral.
(b) Effective Date. This Agreement will become effective on the Effective Date.
(c) Mutually Drafted Agreement. Each of the Parties has been fully and competently
represented by counsel of its own choosing in the negotiation and drafting of this Agreement. Accordingly,
the Parties agree that any rule of construction of contracts resolving any ambiguities against the drafting
party shall be inapplicable to this Agreement. Further, each of the Parties acknowledges that it has read
this entire document, including the attached exhibits, and fully understands its terms and effect.
7
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
1 1
(d) Further Assurances. The Parties shall execute, acknowledge, and deliver such additional
documents or instruments as may be necessary to carry out the intent of this Agreement, including, but now
limited to, those expressly referred to in this Agreement.
(e) Entire Agreement; Amendment. This Agreement contains the entire agreement between
the Parties with regard to the matters set forth. This Agreement may be amended or modified only by a
written agreement executed by each of the Parties.
(f) Attachments. Attachments A, B, and C of this Agreement are each incorporated herein by
this reference.
(g) No Third -Party Rights. This Agreement is not intended to, and shall not create, any rights
in favor of any persons or entities other than the Parties, and no such third -party beneficiaries are intended.
(h) Notice. Any notice required or permitted to be given pursuant to this Agreement shall be
in writing and shall be deemed to be given when served personally, or on the third business day after mailing
if mailed by United States mail, postage prepaid, addressed to the applicable Party as set forth below:
If to the City: City of Alameda
Alameda City Hall
2263 Santa Clara Ave., Rm 320
Alameda, CA 94501
Tel: (510) 747 -4700
Attn: City Manager
With a copy to: City of Alameda
Alameda City Hall
2263 Santa Clara Ave., Rm 280
Alameda, CA 94501
Tel: (510) 747 -4750
Attn: City Attorney
If to the Corps: US Army Corps of Engineers
1455 Market Street
San Francisco, CA 94103
Tel: (415) 503 -6760
Attn: District Counsel
(i) Execution in Counterparts. The Parties may execute this Agreement in counterparts, each
one of which will be an original or the equivalent thereof, and all such counterparts taken together shall
constitute but one and the same agreement.
0) Construction. The language in all parts of this Agreement shall in all cases be construed
simply according to its fair meaning and not strictly for or against any of the parties hereto. Section
headings of this Agreement are solely for convenience of reference and shall not govern the interpretation
of any of the provisions of this Agreement. References to "sections" are the Sections of this Agreement,
unless otherwise specifically provided.
(Remainder of page intentionally left blank; signature page follows)
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
CONFIDENTIAL
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
CONFIDENTIAL
In WITNESS WHEREOF, the Parties have signed this Memorandum of Understanding on the
dates indicated below.
CITY OF ALAMEDA U.S. ARMY CORPS OF ENGINEERS
By: By:
Jill Keimach, LTC John C. Morrow
City Manager Commander and District Engineer
Date:
Attest:
By:
Lara Weisiger, City Clerk
Approved as to Form:
Date:
THIS AGREEMENT SHALL NOT BE
VALID OR EFFECTIVE FOR ANY
PURPOSE UNLESS AND UNTIL IT IS
SIGNED BY THE CORPS ATTORNEY
Approved as to form and legality this
day of , 2016
By: By:
Andrico Q. Penick
Assistant City Attorney
Authorized by City Council Ordinance No.
10
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
Merry Goodenough
District Counsel
CONFIDENTIAL
ATTACHMENT A
Tidal Canal Overview Map
11
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
CONFIDENTIAL
ATTACHMENT B
Subdivision Map of the Property
12
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
CONFIDENTIAL
ATTACHMENT C
Quitclaim Deed
13
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
X113,3034,11tw
14
City of Alameda and US Army Corps
Memorandum of Understanding
Oakland Inner Harbor Tidal Canal Transfer
TIDAL CANAL PARCEL
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
CITY OF ALAMEDA,
a charter city and municipal corporation
AS SELLER
and
a
AS BUYER
Residential Parcel:
CITA\52945 \985635.6
Exhibit C
PAGE
1. THE TIDAL CANAL PARCEL ............................................................ ..............................4
1.1 Property ...................................................................................... ..............................4
1.2 Certain Improvements and Structural Encumbrances ................ ..............................4
2. PURCHASE PRICE .............................................................................. ..............................5
2.1
Deposit ....................................................................................... ..............................5
2.2
Balance of Purchase Price .......................................................... ..............................5
2.3
Independent Consideration ........................................................ ..............................5
2.4
Obligations and Duties of Escrow Agent ................................... ..............................5
3. BUYER'S
INVESTIGATION OF PROPERTY CONDITIONS .......... ..............................6
3.1
Property Lines and Boundaries .................................................. ..............................6
3.2
Separate Parcels ......................................................................... ..............................6
3.3
Governmental Requirements, Fees and Permits ........................ ..............................6
3.4
Water and Utilities ..................................................................... ..............................6
3.5
Environmental Hazards .............................................................. ..............................6
3.6
Geologic /Seismic Conditions ..................................................... ..............................6
3.7
Condition of Improvements ....................................................... ..............................7
3.8
Zoning ........................................................................................ ..............................7
4. RECEIPT OF DISCLOSURE DOCUMENTS ...................................... ..............................7
5. DUE DILIGENCE PERIOD ...............
...........8
5.1 Access to Property ..................................................................... ..............................8
5.2 Additional Documents ............................................................... ..............................8
5.3 Due Diligence Satisfaction ... ................................................. ..............................8
6. CONDITION OF THE PROPERTY ..................................................... ..............................8
CITA\52945 \985635.6 I
TABLE OF CONTENTS
(CONTINUED)
PAGE
6.1 Property Sold in an "As Is" Condition and "With All Faults" .. ..............................8
6.2 Waiver of Environmental Conditions ......................................... .............................9_ _
6.3 Waiver of Natural Hazards ........................................................ ..............................9
6.4 Dredging .................................................................................... ..............................9
6.5 Disclaimer and Release of Claims ............................................. ..............................9
6.6 Waiver of Unknown Claims ..................................................... .............................10
6.7 Waivers Bargained For ............................................................. .............................10
6.8 Title ........................................................................................... .............................10
6.9 Survival ..................................................................................... .............................10
7. CONDITIONS PRECEDENT TO CLOSING ..................................... .............................10
7.1 Army Corps Conveyance .......................................................... .............................10
7.2 No Termination by Buyer during Due Diligence Period ......... ..............................1 l
7.3 Commitment for all Residential Appurtenant Parcels .............. .............................11
7.4 No Pendency of Legal Challenge ............................................. .............................11
7.5 Alameda City Council Approval .............................................. .............................11
8. CLOSING ............................................................................................. .............................11
8.1 Seller Deposits into Escrow ..................................................... ..............................1 l
8.2 Buyer Deposits into Escrow ...................................................... .............................12
8.3 Close of Escrow ........................................................................ .............................12
8.4 Closing Costs ............................................................................ .............................13
9. REPRESENTATIONS AND WARRANTIES ..................................... .............................13
9.1 Seller's Representations and Warranties .................................. .............................13
9.2 Buyer's Representations and Warranties .................................. .............................13
CITA152945\985635.6 it
TABLE OF CONTENTS
(CONTINUED)
PAGE
10. DISPUTES TO BE RESOLVED BY JUDICIAL REFERENCE ........ .............................14
Counterparts .............................................................................. .............................16
11. GENERAL PROVISIONS ................................................................... .............................15
11.10
11.1
Capacities .................................................................................. .............................15
11.11
11.2
Binding on Successors .............................................................. .............................15
11.12
11.3
Entire Agreement ...................................................................... .............................15
11.13
11.4
Attorney's Fees ......................................................................... .............................15
11.14
11.5
Brokers' Commission ............................................................... .............................16
11.15
11.6
Governing Law ......................................................................... .............................16
11.7
Captions .................................................................................... .............................16
11.8
Time .......................................................................................... .............................16
11.9
Counterparts .............................................................................. .............................16
11.10
Notices ...................................................................................... .............................16
11.11
Escrow Instructions ................................................................... .............................17
11.12
Construction .............................................................................. .............................17
11.13
Possession ................................................................................. .............................17
11.14
Non - Liability of Officials, Employees and Agents .................. .............................17
11.15
Severability ............................................................................... .............................17
CITA\52945 \985635.6 III
INDEX OF EXHIBITS
Exhibits
A FINAL MAP
B QUITCLAIM DEED
CITA\52945 \985635.6
TIDAL CANAL PARCEL PURCHASE AND SALE AGREEMENT
THIS AGREEMENT OF PURCHASE AND SALE ( "Agreement ") is entered
into as of this day of , 2016 (the "Effective Date "), by and between the CITY OF
ALAMEDA, a charter city and municipal corporation ( "City" or "Seller "), and
, ( "Buyer "), whose address is . Seller
and Buyer are collectively referred to herein as the "Parties ". The Parties have entered into the
Agreement with reference to the following facts:
RECITALS
A. On October 20, 1884, the Superior Court of Alameda granted to the U.S.
Army Corps of Engineers, a federal agency acting under the U.S. Department of Defense (the
"Corps "), by judicial decree No. 3590, ownership of a strip of land connecting the cities of
Alameda and Oakland for purposes of dredging and excavating a tidal canal out of uplands,
which property became known as the Oakland Inner Harbor Tidal Canal (the "Tidal Canal ").
B. Between approximately 1884 -1905, the Corps excavated, dredged, and
created the Tidal Canal, which is a waterway approximately 1.8 miles long and 400 feet wide
and connects the Oakland Estuary with the San Leandro Bay. The Corps has retained ownership
of the Tidal Canal since its creation.
C. As a result of accretion and development over the past century, the outer
edge of the Tidal Canal on the Alameda side now includes uplands and bulkheads that have been
utilized to varying degrees by adjacent private property owners.
D. Over the past century, the Corps has issued various approvals and
authorizations to adjacent property owners to use portions of the Tidal Canal through real estate
licenses, leases and regulatory permits.
E. In 1990, the U.S. Congress authorized the Corps to transfer the Tidal
Canal to the City of Alameda through the Water Resources Development Act of 1990. The
Corps has been negotiating with the City of Alameda to transfer the Alameda side of the Tidal
Canal out of federal ownership.
F. Starting in 2000 and continuing until present day, the Corps instituted a
moratorium on issuing regulatory permits for any repairs, upgrades, improvements or new
construction within the Tidal Canal (the "Permitting Moratorium "). The Permitting
Moratorium has prevented necessary repairs and improvements to existing structures and docks
along the waterfront, which has negatively affected adjacent property owners and the City's code
enforcement program.
G. To lift the Permitting Moratorium and to remove the existing cloud on title
along the Tidal Canal, the City has agreed to accept ownership of the Alameda -side of the Tidal
Canal from the Corps, subject to certain conditions, with the intention of immediately
transferring portions of the property to the adjacent property owners at fair market value, or the
associated transaction costs for each.
CITA\52945 \985635.6 2
H. The Corps desires to transfer the Alameda -side of the Tidal Canal to the
City, and has agreed to take all steps necessary to effectuate the transfer, including filing a
tentative map application under the Subdivision Map Act (CA Gov. Code § §66410- 66413.5)
prior to transfer to facilitate the subsequent transfer of portions of the property to the adjacent
property owners. The Tentative Map #8337 subdivides the Army Corps land into ninety -nine
(99) individual parcels. The Army Corps will retain five (5) parcels: the Oakland side of the
canal (Parcel 1), property adjacent to the federally -owned Navy Operational Support Center
(Parcel 3), footings for the High Street Bridge (Parcel 97), the Miller- Sweeney Bridge and the
Fruitvale Rail Bridge (Parcel 98) and the Park Street Bridge (Parcel 99). The City will retain
Parcels 2 and 96 (the "Open Water Parcels "), which will be preserved for open navigation
through the Tidal Canal. The City will offer at fair market value the remaining ninety -two (92)
parcels consisting of eight (8) commercial parcels (the "Commercial Appurtenant Parcels ")
and eighty -four (84) residential parcels (the "Residential Appurtenant Parcels ") to the adjacent
property owners.
I. On [DATE], the Corps completed the Environmental Assessment/Finding
of No Significant Impact to cover the federal transfer of the Tidal Canal in compliance with the
National Environmental Policy Act (42 U.S.C. 4321).
J. On [DATE], the Corps completed a Finding of Suitability of Transfer,
which provides documentation that the Tidal Canal is environmentally suitable for transfer by
deed.
K. On , 2016, the City entered into a Memorandum of Understanding
wit
with the Corps ( "MOA ") h re_spect to the transfer of the Residential Appurtenant Parcels
from the Corps to the City and the subsequent and immediate transfer of those parcels to the
adjacent property owners. It is estimated that the Corps will convey the Residential Appurtenant
Parcels to the City on December 13, 2016 (the date upon which the Residential Appurtenant
Parcels are conveyed to the City by the Corps is referred to as the "Army Corps Conveyance
Date "). The Estimated Closing Date for this Agreement (as defined at Section 8.3 below) is
therefore December 13, 2016.
L. On July 11, 2016, the Planning Board of the City of Alameda
recommended that the City Council adopt a Final Negative Declaration, introduced as Ordinance
Amending Chapter 30 of the Alameda Municipal Code Section 3 -4.21 E, Estuary District, and
approve Tentative Map #8337 (PLN16 -0240) for a one hundred five (105) lot subdivision
located along the Oakland Inner Harbor Tidal Canal from approximately one thousand eight
hundred (1,800) feet northwest of the Park Street Bridge to approximately two thousand three
hundred (2,300) feet south of High Street.
M. On or before the Army Corps Conveyance Date, the City caused to be
recorded in the Official Records of the County of Alameda, a final subdivision map creating,
inter alia, a single parcel designated as Parcel (the property which is the subject of
this Agreement), as shown on Exhibit A (the "FINAL MAP ") attached hereto and incorporated
herein by this reference.
CITA\52945 \985635.6
N. The City has obtained an appraisal dated August 2016 of the fair market
value of the Residential Appurtenant Parcels (appraised as unimproved land) from Sara Cohn,
M.A.I. of Watts, Cohn and Partners, Inc. (the "Appraisal').
O. On September 20, 2016, the City Council: (i) approved the Negative
Declaration for the project; (ii) approved and adopted the final subdivision map; (iii) approved
the transfer of fee title of the Residential Appurtenant Parcels from the Army Corps to the City;
(iv) approved the sale of the Residential Appurtenant Parcels from the City to various buyers at
the greater of the fair market value or the transaction costs; and (v) authorized the City Manager
to execute all documents and to take such action as necessary and desirable to consummate the
transaction.
P. The undersigned Buyer is the owner of that certain parcel of improved
property commonly known as [address], APN (the "Buyer's Parcel ") which is
immediately adjacent to the Property (as defined in Section 1.1 below). To facilitate the lifting
of the Permitting Moratorium, to lift the existing cloud on title to existing structures and docks
on or about the Property and to provide Buyer with direct access from the Residential Parcel to
the water frontage, it is the intent of the Parties hereto that Buyer purchase and the City sell the
Property upon the terms and conditions set forth herein.
NOW THEREFORE for good and valuable consideration, including the mutual
covenants and promises of the parties, the parties hereto agree as follows:
1. THE TIDAL CANAL PARCEL. Seller hereby agrees to sell, assign and
convey to Buyer, and Buyer hereby agrees to purchase from Seller, all of Seller's right, title and
interest in and to the following, upon all of the terms, covenants and conditions set forth in this
Agreement.
1.1 Propert y. The property that is the subject of this transaction
includes all of the following (subject to the exceptions, limitations and disclaimers listed in
Section 1.2 below): (a) that certain real property located in the City of Alameda, County of
Alameda, known as Parcel , as shown on the FINAL MAP attached hereto as
Exhibit A; (b) all rights, privileges, easements and appurtenances thereto; (c) the improvements
located thereon, if any; (d) all of Seller's right, title and interest in and to any and all mineral and
water rights, easements, rights -of -way and other appurtenances used or connected with the
beneficial use or enjoyment thereof; and (e) all of Seller's interests in any assignable permits,
licenses, certificates, authorizations, variances, waivers and approvals, if any, relating to the
property so conveyed (collectively hereinafter referred to as the "Property ").
1.2 Certain Improvements and Structural Encumbrances. Seller makes
no representations or warranties with regard to any improvements on the Property, either with
regard to their physical condition or compliance with government requirements. In addition,
Buyer hereby acknowledges that the Property may contain docks, boat houses and other
improvements or structural encumbrances for which parties other than Seller may claim
ownership interest. Said improvements or structural encumbrances may already be owned by
Buyer. It is expressly agreed by the Parties that the Seller shall have no obligation to remove
these improvements and /or structural encumbrances prior to the Closing Date or at any time
CITA152945\985635.6 4
thereafter. Buyer hereby expressly acknowledges that Buyer is fully aware of the improvements
and /or structural encumbrances on the Property, if any, whether owned by Buyer or third parties.
Buyer hereby expressly agrees to enter into this transaction, execute this Agreement and accept
title to the Property in exchange for the Purchase Price, despite the presence of the improvements
and /or structural encumbrances, if any, even is said improvements and /or structural
encumbrances are owned by parties other than Buyer or Seller. Buyer is also directed to Article
3 below as to Buyer's duty of inspection and due diligence.
2. PURCHASE PRICE. The Purchase Price for the Property is
Thousand and 00 /100 Dollars ($ .00) together with closing
costs (the "Purchase Price ") which is the fair market value of the Property, as determined by the
Appraisal on a per parcel basis, plus the closing costs as determined by the Escrow Agent. The
Purchase Price shall be paid by Buyer as follows:
2.1 Deposit. Within ten (10) business days of the Effective Date of
this Agreement, Buyer shall deliver to Chicago Title Company, 675 N. First Street, Suite 300,
San Jose, CA 95112 ( "Escrow Agent" and "Title Company ") an initial earnest money deposit
in the amount of Five Hundred and 00/100 Dollars ($500.00) (the "Deposit "). The Deposit paid
by Buyer pursuant to the terms hereof shall be held by Escrow Agent, pursuant to a separate
escrow agreement, in an interest bearing account insured by the federal government. In the event
the purchase and sale of the Property is consummated as contemplated hereunder, the Deposit
shall be credited against the Purchase Price Balance at Closing. A copy of this Agreement, duly
executed by both parties, shall also be deposited with Escrow Agent promptly after execution.
2.2 Balance of Purchase Price. No later than fifteen (15) days before
the estimated Closing Date (as defined in Section 8.3(a) below), Buyer shall deposit with Escrow
Agent additional cash by wire transfer of immediately available funds in the amount of
Thousand and 00 /100 Dollars ($ .00) together with estimated
closing costs ( "Purchase Price Balance ").
2.3 Independent Consideration. The Deposit being delivered by Buyer
includes the amount of One Hundred and No/ 100 Dollars ($100.00) as independent consideration
for Seller's performance under this Agreement ( "Independent Consideration "), which shall be
retained by Seller and, except as otherwise specified herein, shall be nonrefundable to Buyer. If
the Closing occurs, the Independent Consideration shall be applied to the Purchase Price Balance
at Closing. The Independent Consideration has been bargained for as consideration for Seller's
execution and delivery of this Agreement and for Buyer's review, inspection and termination
rights during the Due Diligence Period, and such consideration is adequate for all purposes under
any applicable law or judicial decision.
2.4 Obligations and Duties of Escrow Agent.
(a) The duties and obligations of the Escrow Agent are only as
herein specifically provided, and are purely ministerial in nature. The Escrow Agent shall incur
no liability for any error in judgment, for any act done or step taken or omitted to be taken by it
in good faith, for any mistake of fact or law or for any reason whatsoever except for its own
willful misconduct or failure to follow an escrow instruction signed by both Seller and Buyer.
CITA\52945\985635.6 5
(b) In the event that Seller and Buyer cannot agree on the
disbursement of the Deposit, the Escrow Agent may place the Deposit with a court of competent
jurisdiction and request that the court resolve the dispute.
3. BUYER'S INVESTIGATION OF PROPERTY CONDITIONS. Buyer is
aware of Buyer's affirmative duty to exercise reasonable care in the acquisition of real property,
including but not limited to investigating (with the advice and assistance of an attorney or other
professionals as appropriate) the facts that are known to or within the diligent attention and
observation of the Buyer including, but not limited to, with respect to the following:
3.1 Property Lines and Boundaries. Fences, hedges, walls, and other
natural or constructed barriers or markers do not necessarily identify true Property boundaries.
Property lines are verifiable only by survey.
3.2 karate Parcels. Upon conveyance of the Property to Buyer, the
Property and the Buyer's Parcel will remain two separate parcels which may be merged into one
parcel only in in compliance with the Subdivision Map Act (California Government Code
Section 66410- 66413.5), and at Buyer's sole cost and expense. If Buyer chooses to merge the
Property and Buyer's Parcel, such merger must occur after the Closing Date (as defined at
section 8.3(a) below).
3.3 Governmental Requirements, Fees and Permits. The need for
governmental permits, inspections, certificates, or other determinations affecting the Property
and any improvements located thereon; limitations, restrictions, and requirements affecting the
use of the Property; future development, zoning, building, size, governmental permits, and
inspections; and application, processing, inspection, and in -lieu fees and expenses associated
therewith. Buyer should investigate the need for regulatory permits for new and existing
structures. Any such uses or permits may be governed by the Rivers and Harbors Appropriation
Act of 1899 (33 U.S.C. 403) and the Federal Water Pollution Control Act. (Clean Water Act) (33
U.S.C. 1251 - 1376).
3.4 Water and Utilities. Water and utility availability and use
restrictions; hook -up fees, facility fees, and other costs and expenses associated with the
provision of utilities to the Property.
3.5 Environmental Hazards. Potential environmental hazards
contaminated soil or water, hazardous waste, waste disposal sites, electromagnetic fields, and
other substances, materials, products, or conditions.
3.6 Geologic /Seismic Conditions. Geologic /seismic conditions, soil
and terrain stability, suitability, and drainage. Some parts of the East Bay have expansive, or
adobe, soil which will expand and contract with the wet and dry seasons. This expansion and
contraction can cause movement or shifting of structures. Like all regions in the Bay Area, the
Property is considered to be subject to high seismic activity. Local moderate seismic activity
association with any area faults could produce severe ground shaking.
CITA\52945 \985635.6 6
3.7 Condition of Improvements. The physical condition of any docks,
piers or other improvements, the issue of whether such improvements possess necessary permits
or authorizations and whether such improvements are located exclusively upon the Property.
3.8 Zoning. Any use or development of the Property must be in
conformity with its zoning designation, E, Estuary District, as defined at Section 30 -4.21 of the
Alameda Municipal Code of Ordinances.
4. RECEIPT OF DISCLOSURE DOCUMENTS. Buyer is hereby advised to
thoroughly review all reports and disclosures related to the Property referenced herein or
otherwise provided to Buyer (with the advice and assistance of a lawyer or other professionals as
appropriate). The following documents in Seller's possession related to the Property (the
"Property Information ") are delivered to Buyer (via the City's website at the following link:
littt)s : /Ialaiiiedaca �,,ovltidal- can,it"hro*ect or, at Buyer's request, hard copies or electronic copies
will be delivered to Buyer) concurrently herewith:
(a) Subdivision Map;
(b) _ _, 2016 MOU between the City and the Corps;
(c) _, 2016 Environmental Assessment/Finding of No
Significant Impact to cover the federal transfer of the Tidal Canal in compliance with the
National Environmental Policy Act;
(d) _, 2016 Finding of Suitability of Transfer;
(e) June 2014 Environmental Assessment Oakland Inner
Harbor Tidal Canal Surplus Property Divestiture (Environmental Baseline Survey);
(f) May 12, 2015 Summary Report on Oakland Inner Harbor
Tidal Canal Environmental Contamination Issues prepared by Russell Resources, Inc.;
(g) Mitigated Negative Declaration Determination;
(h) Declaration of Restrictions;
(i) Appraisal report from Watts, Cohn and Partners, dated
August 2016 showing the aggregate fair market value of the Residential Appurtenant Parcels and
the Property on a per parcel basis.
Seller will provide to Buyer, without charge, a hard copy or pdf of any of the above documents
upon written request.
BUYER HEREBY ACKNOWLEDGES RECEIPT OF ALL OF THE ABOVE -
REFERENCED DOCUMENTS
Buyer's Initials:
CrrA\52945 \985635.6 7
5. DUE DILIGENCE PERIOD. As used in this Agreement, the term "Due
Diligence Period" shall mean the period commencing on the date Buyer executes this
Agreement and ending at 5:00 p.m. on the fifteenth (15th) business day after Buyer executes this
Agreement. During said Due Diligence Period Buyer is encouraged to undertake such
investigations of property conditions, to review documents and undertake such other
investigations as it deems prudent.
5.1 Access to Property. Buyer acknowledges that, prior to the Army
Corps Conveyance Date, Seller neither possesses nor controls the Property, the same remaining
under the ownership of the Corps. Thus Seller will not have title to, nor possession of any of the
Property and therefore has no authority to grant Buyer access to conduct environmental,
geotechnical or other tests on the land. The foregoing notwithstanding, Buyer acknowledges that
Buyer has direct access and /or actual use and possession of the Property with the actual or
implied consent of the Corps. Thus Buyer hereby acknowledges that Buyer has sufficient access
to the Property to conduct its due diligence during the due diligence period.
5.2 Additional Documents. Seller agrees that any additional
documents relating to the Property, beyond those identified in Article 4 above, which come into
the possession, custody or control of Seller after the Effective Date but before the Closing Date
will be promptly delivered by Seller to Buyer via the City's website at the link as identified at
Section 4 above or, at Buyer's request, by hard or electronic copies delivered to Buyer.
5.3 Due Diligence Satisfaction. Buyer may, at any time prior to
5:00 p.m. on the last day of the Due Diligence Period (the "Due Diligence Satisfaction Date "),
elect to proceed with the purchase of the Property or terminate this Agreement in its sole and
absolute discretion for any reason or no reason, by sending to Seller written notice indicating
Buyer's election to terminate the Agreement. In the event of such termination, the Deposit
(exclusive of the Independent Consideration) then held by Escrow Agent shall be returned to
Buyer. If Buyer fails to deliver such notice prior to 5:00 p.m. on the Due Diligence Satisfaction
Date in accordance with the provisions of this Section 5.3, then Buyer shall be deemed to have
waived its right to terminate this Agreement pursuant to this Section 5.3. If Buyer so terminates
this Agreement, Seller may thereafter offer the Property to a third party purchaser.
6. CONDITION OF THE PROPERTY.
6.1 Property Sold in an "As Is" Condition and "With All Faults ".
Except for the representations or warranties of Seller expressly set forth in this Agreement,
Buyer and Seller mutually acknowledge and agree that, the Property is being sold in an "AS IS"
condition and "WITH ALL FAULTS," known or unknown, contingent or existing. Buyer has
the sole responsibility to fully inspect the Property, to investigate all matters relevant thereto,
including, without limitation, the condition of the Property and to reach its own, independent
evaluation of any risks (environmental or otherwise) or rewards associated with the ownership of
the Property. Effective as of the Closing, Buyer hereby waives and releases the City, its City
Council, boards, commissions, officials, and its employees, agents, successors and assigns from
and against any and all claims, obligations and liabilities arising out of or in connection with the
physical condition of the Property.
CrFA\52945 \985635.6
6.2 Waiver of Environmental Conditions. To the fullest extent
permitted by law, and except as expressly set forth in this Agreement, Buyer does hereby
unconditionally waive and release the City, its City Council, boards, commissions, officials, and
its employees, agents, successors and assigns from any present or future claims and liabilities of
any nature arising from or relating to the presence or alleged presence of Hazardous Substances
in, on, at, from, under or about the Property or any adjacent property, including, without
limitation, any claims under or on account of any environmental law, regardless of whether such
Hazardous Substances are located in, on, at, from, under or about the Property or any adjacent
property prior to or after the Closing. In addition, Buyer does hereby covenant and agree to
defend, indemnify, and hold harmless Seller, its City Council, boards, commissioners, officials
and its employees, agents, successors and assigns from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs or expenses, known or unknown, existing
in future, to the extent relating to any Hazardous Substances that are placed, located or released
on the Property after the Closing and, with respect to releases, that did not exist on the Property
prior to the Closing, including any action or proceeding brought or threatened or ordered by
governmental authorities. For purposes of this Agreement, "Hazardous Substances" means any
flammable explosives, radioactive materials, hazardous wastes, petroleum and petroleum
products and additives thereof, toxic substance or related materials, including without limitation,
any substances defined as or included within the definition of "hazardous substances,"
"hazardous wastes," "hazardous materials," or "toxic substances" under any applicable federal,
state or local laws, ordinances or regulations.
6.3 Waiver of Natural Hazards. Buyer further acknowledges that
"Natural Hazards" described in the following California Code Sections (the "Natural Hazard
Laws ") may affect the Property: Government Code Sections 8589.4; 8589.3; Government Code
Sections 51183.4, 51183.5 (Fire Hazard Severity Zone); Public Resource Code Section 2621.9
(Earthquake Fault Zone); Public Resource Code Section 2694 (Seismic Hazard Zone); and
Public Resource Code Section 4136 (Wildlands Area). Buyer acknowledges and agrees that
Buyer has had the opportunity independently to evaluate and investigate whether any or all of
such Natural Hazards effect the Property and Seller shall have no liabilities or obligations with
respect thereto. Buyer further acknowledges that pursuant to California Civil Code section
1103. 1, this transfer is exempt from the natural hazard disclosure requirements set forth in
sections 1103 et. seq. Without limiting the foregoing, Buyer acknowledges and agrees that
Buyer knowingly and intentionally waives and releases Seller from any disclosures, obligations
or requirements of Seller with respect to Natural Hazards, including, without limitation, any
disclosure obligations or requirements under the aforementioned Code Sections or under
California Civil Code Section 1102.
6.4 Dredging. Buyer shall be solely responsible for any dredging that
may be necessary or desirable for Buyer's use of the Property.
6.5 Disclaimer and Release of Claims. The Purchase Price reflects
that the Property is being purchased by Buyer on an "as -is," "where is" and "with all faults"
basis. Buyer hereby waives and relinquishes all rights and privileges arising out of, or with
respect to, any representations, warranties or covenants, whether express or implied, which may
have been made or given, or which may be deemed to have been made or given, by Seller or its
representatives, except for those representations, warranties and covenants set forth in this
CITA\52945 \985635.6 9
Agreement. Buyer has not relied upon and will not rely upon, and Seller expressly disclaims,
any representations or warranties with respect to: (a) the presence of any Hazardous Substances
in, on, at, from, under or about the Property or any adjacent property prior to or after the Closing;
or (b) the matters referenced in Sections 3.1 through 3.8 above (the "Buyer's Release Claims ").
6.6 Waiver of Unknown Claims. Buyer hereby acknowledges that
Buyer is familiar with and understands the meaning 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.
Buyer waives and relinquishes any right or benefit which Buyer has or may have under Section
1542 of the California Civil Code to the fullest extent that it may lawfully waive such rights and
benefits. In connection with such waiver and relinquishment, Buyer acknowledges that it is
aware that it or its consultants may hereinafter discover facts in addition to or different from
those which it now knows or believes to exist with respect to the subject matter of this
Agreement, but that it is Buyer's intention hereby to fully, finally and forever settle and release
all of Buyer's Released Claims, known or unknown, suspected or unsuspected, which now exist
or may exist hereafter between Buyer and Seller with regard thereto.
6.7 Waivers Bargained For. Buyer acknowledges and represents that
the waivers set forth in this Article 6 have been negotiated and each is an essential aspect of the
bargain between the parties.
6.8 Title. Upon and subject to Close of Escrow, Seller shall convey
title to the Property to Buyer by quitclaim deed in the form of Exhibit B, subject to any
exceptions or restrictions to which the Property is subject upon its conveyance from the Corps to
the City.
6.9 Survival. The terms and provisions of this Article 6 shall survive
the Closing hereunder until expiration of any applicable statute of limitations.
7. CONDITIONS PRECEDENT TO CLOSING. The obligations of Buyer
to purchase and Seller to sell the Property are expressly conditioned upon the satisfaction, prior
to said closing, of each of the conditions precedent set forth in this Article 7 (the "Conditions
Precedent "), any of which conditions may be waived by the party to whose benefit such
condition inures. If this Agreement is deemed terminated as a result of the failure or non-
occurrence of a Condition Precedent, the Deposit (including the Independent Consideration
except as otherwise set forth in Sections 5.3 and 7.2) then held in Escrow shall be returned to
Buyer.
7.1 Army Corps Conveyance. The conveyance by the Corps of the
Open Water Parcels, Commercial Appurtenant Parcels and Residential Appurtenant Parcels shall
CITA\.52945 \985635.6 10
have occurred in accordance with the terms and conditions of the MOA and Recital K above. If
the Army Corps Conveyance Date has not occurred by January 13, 2017, then this Agreement
shall be deemed terminated.
7.2 No Termination by Buyer during Due Diligence Period. Buyer
shall not have timely exercised the right to terminate this Agreement before the Due Diligence
Satisfaction Date in accordance with Section 5.3. If Buyer terminates in accordance with
Section 5.3, the Deposit (less the Independent Consideration) shall be returned to Buyer.
7.3 Commitment for all Residential Appurtenant Parcels. The
obligation of the Corps to convey the Residential Appurtenant Parcels to the City, and the City's
obligation to convey the Property to Buyer are conditioned upon there being buyers for one
hundred percent (100 %) of the Residential Appurtenant Parcels. For purposes of satisfying this
Condition Precedent, the buyer need not be the owner of the adjacent residential parcel. All
Residential Appurtenant Parcels must be under contract and the purchase price and documents
required to be deposited into escrow shall have all been deposited on or before the Closing Date
(as defined in Section 8.3(a) below).
7.4 No Pendency of Legal Challenge. There shall be no pending legal
action challenging the conveyance of the Residential Appurtenant Parcels, or any of them, from
the Corps to the City, or challenging the reconveyance by the City of the Residential
Appurtenant Parcels, or any of them, or challenging the validity of this Agreement or any action
to be taken by Seller or Buyer pursuant thereto.
7.5 Alameda City Council Approval. The Alameda City Council in its
sole and absolute discretion shall approve by at least four (4) affirmative votes to acquire the
Open Water Parcels, Commercial Appurtenant Parcels and Residential Appurtenant Parcels and
shall have directed the City Manager to execute any and all documents to consummate the
transaction upon terms and conditions the City Council deems appropriate.
CLOSING.
8.1 Seller Deposits into Escrow. Seller shall deposit the following into
Escrow:
(a) Quitclaim deed. A duly executed and acknowledged
quitclaim deed conveying the Property to Buyer;
(b) Certificate of Non - Foreign Status. A Non - Foreign
Certificate executed by the City (the " FIRPTA Certificate ") and a California Form 593 -C
executed by the City (the "Cal - FIRPTA Certificate ");
(c) Escrow instructions. Written escrow instructions to Escrow
Agent instructing the Escrow Holder to close escrow in accordance with the terms of this
Agreement.
CITA\52945V85635.6 I I
(d) Other Documents. Such other documents and instruments
as may be required by the provisions of this Agreement or may be reasonably required by
Escrow Agent or otherwise to carry out the terms and intent of this Agreement.
8.2 Buyer Deposits into Escrow. Buyer shall deposit the following
into Escrow:
(a) Balance of Purchase Price. Cash or immediately available
funds in the amount of the Purchase Price Balance and estimated closing costs by no later than
thirty (30) days in advance of Closing;
(b) Escrow Instructions. Written escrow instructions to
Escrow Holder instructing the Escrow Holder to close escrow in accordance with the terms of
this Agreement;
(c) Other Documents. Such other documents and instruments
as may be required by any other provision of this Agreement or as may be reasonably required
by Escrow Agent or otherwise to carry out the terms and intent of this Agreement.
8.3 Close of Escrow.
(a) Closing Date. The Escrow shall close upon the same date
as the Army Corps Conveyance Date and immediately following such conveyance of the Tidal
Canal Conveyance Parcels from the Corps to the City (the "Closing Date "). For purposes of
Buyer's obligation to deposit the Purchase Price Balance into Escrow in accordance with
Section 8.2, the estimated Closing Date for this transaction is December 13, 2016. For purposes
of satisfying a Condition Precedent Seller may, at its sole and absolute discretion, elect to
continue the Closing Date for a period of not to exceed thirty (30) days by giving written notice
of the same to Escrow Holder and Buyer.
(b) Closing of Escrow. When the contingencies listed in
Section 7.1 have been satisfied or waived in writing by Buyer and Seller and Escrow Agent has
received all necessary cash and documents, Escrow Agent shall immediately close Escrow as
provided below (the "Closing "). The parties to this Agreement shall cooperate with each other
and the Escrow Agent in preparing and executing such further documents (including further
escrow instructions) as may be reasonably necessary to close Escrow as contemplated by this
Agreement.
(c) Procedure. Escrow Agent shall close Escrow as follows:
(i) Record quitclaim deed. Record quitclaim deed
conveying the Property to Buyer;
(ii) Issue title policy. Issue and deliver to Buyer a
CLTA owner's policy of title insurance in the amount of the Purchase Price showing title to the
Property vested of record of the Closing Date with Buyer;
CITA\52945 \985635.6 12
(iii) Pay to Seller. Pay to Seller the funds in Escrow
equal to the Purchase Price, reduced by the closing costs to be paid by Seller as hereinafter set
forth;
(iv) Closing statement. Prepare and deliver to Buyer
and Seller one (1) signed copy of Escrow Agent's closing statement showing all receipts and
disbursements from the Escrow.
8.4 Closing Costs. Buyer shall pay all City and County documentary
transfer taxes due on the transfer of the Property from Seller to Buyer, all premium costs and
expenses incurred in connection with the issuance of a CLTA owner's policy of title insurance,
together with all escrow fees. Each party shall bear the expense of its own counsel.
9. REPRESENTATIONS AND WARRANTIES.
9.1 Seller's Representations and Warranties. Seller represents and
warrants to Buyer that the following matters are true and correct in all material respects as of the
execution of this Agreement and will also be true and correct in all material respects as of the
Closing:
(a) Due Authority. Seller has obtained approval of the
Alameda City Council authorizing the City Manager to execute this Agreement on its behalf.
(b) Litigation. Seller has received no written notice of any
pending action or proceeding which challenges the validity of this Agreement or any action taken
or to be taken by Seller pursuant hereto.
9.2 Buyer's Representations and Warranties. Buyer represents and
warrants to Seller that the foregoing matters are true and correct in all material respects as of the
execution of this Agreement, and will also be true and correct in all material respects as of the
Closing.
(a) Organization, Authorization and Consents. Buyer: (i) is a
natural person(s) or is duly organized, validly existing and in good standing under the laws of the
state of its formation; (ii) is and shall remain in good standing and qualified to do business in the
state of California; (iii) has the full power and authority to execute and deliver this Agreement
and all documents now or hereafter to be executed and delivered by it pursuant to this Agreement
(the "Buyer's Documents "); and (iv) is lawfully able to perform all obligations arising under
this Agreement and under the Buyer's Documents, and such performance does not conflict with
any obligations of Buyer. The individual(s) executing this Agreement and the instruments
referenced herein on behalf of Buyer have the legal power, right and actual authority to bind
Buyer to the terms and conditions hereof and thereof.
(b) Authorization of Buffer. Buyer has taken all necessary
action to authorize the execution, deliver and performance of this Agreement, and upon the
execution and delivery of documents to be delivered by Buyer on or prior to the Closing, this
Agreement and such documents shall constitute the valid and binding obligation and agreement
of Buyer, enforceable against Buyer in accordance with its terms, except as enforceability may
CITA\52945\985635.6 13
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of general
application affecting the rights and remedies of creditors.
(c) Buyer not an Employee Benefit Plan. Buyer is not an
employee benefit plan (a "Plan ") subject to the Employee Retirement Income Security Act of
1974, as amended "ERISA "), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code "), nor a person or entity acting, directly or indirectly, on behalf of any Plan
or using the assets of any Plan to acquire the Property, Buyer is not a "party in interest" (as that
term is defined in Section 3(14)) of ERISA with respect to any Plan that is an investor in Seller,
and Buyer's acquisition of the Property will not constitute or result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code.
(d) No Violation of Agreements. Neither the execution,
delivery or performance of this Agreement by Buyer, nor compliance with the terms and
provisions hereof, will result in the breach of any terms, conditions or provisions of, or conflict
with or constitute a default under the terms of any indenture, deed to secure debt, mortgage, deed
of trust, note, evidence of indebtedness or any other agreement or instrument by which Buyer is
bound.
(e) Litigation. Buyer has no knowledge of any pending action
or proceeding which challenges the validity of the Agreement or any action taken or to be taken
by Buyer pursuant hereto.
10. DISPUTES TO BE RESOLVED BY JUDICIAL REFERENCE.
(a) Any action, proceeding or counterclaim brought by either
Party hereto against the other on any matters arising out of or connected with this Agreement
shall be heard and resolved by a referee under the provisions of the California Code of Civil
Procedure, Sections 638 — 645. 1, inclusive (as same may be amended, or any successor
statute(s) thereto) (the "Referee Sections "). Each Party herby acknowledges that in agreeing to
resolve any disputes arising hereunder by means of a judicial reference in accordance with the
Referee Sections constitutes a waiver of the right to a trial by jury.
(b) Within ten (10) days of receipt by any Party of a written
request to resolve any dispute or controversy pursuant to this Article 10, the Parties shall agree
upon a single referee who shall try all issues, whether of fact or law, and report a finding and
judgment on such issues as required by the Referee Sections. If the Parties are unable to agree
upon a referee within such ten (10) day period, then any party may thereafter file a lawsuit in
Alameda County Superior Court the purpose of appointment of a referee under the Referee
Sections. If the referee is appointed by the court, the referee shall be a neutral and impartial
retired judge with substantial experience in the relevant matters to be determined, from
Jams/Endispute, Inc., ADR Services, Inc., the American Arbitration Association or similar
mediation /arbitration entity. The proposed referee may be challenged by any party for any of the
grounds listed in the Referee Sections.
(c) The referee shall have the power to decide all issues of fact
and law and report his or her decision on such issues, and to issue all recognized remedies
CITA\52945 \985635.6 14
available at Law or in equity for any cause of action that is before the referee, including an award
of attorneys' fees and costs in accordance with this Agreement. The Parties shall be entitled to
conduct all discovery as provided in the California Code of Civil Procedure, and the referee shall
oversee discovery and may enforce all discovery orders in the same manner as any trial court
judge, with rights to regulate discovery and to issue and enforce subpoenas, protective orders and
other limitations on discovery available under California law. The Parties agree that the Parties
and the referee shall use best efforts to ensure that (i) discovery be conducted for a period no
longer than six (6) months from the date the referee is appointed, excluding motions regarding
discovery, and (ii) a trial date be set within nine (9) months of the date the referee is appointed.
(d) In accordance with Section 644 of the California Code of
Civil Procedure, the decision of the referee upon the whole issue must stand as the decision of
the court, and upon the filing of the statement of decision with the clerk of the court, judgment
may be entered thereon in the same manner as if the action had been tried by the court. Any
decision of the referee and /or judgment or other order entered thereon shall be appealable to the
same extent and in the same manner that such decision, judgment, or order would be appealable
if rendered by a judge of the superior court in which venue is proper hereunder. The referee
shall in his /her statement of decision set forth his/her findings of fact and conclusions of law.
The parties intend this general reference agreement to be specifically enforceable in accordance
with the Code of Civil Procedure.
11. GENERAL PROVISIONS.
11.1 Capacities. Each individual and entity executing this Agreement
hereby represents and warrants that he, she or it has the capacity set forth on the signature pages
hereof with full power and authority to find the party on whose behalf he, she or it is executing
this Agreement to the terms hereof.
11.2 Binding on Successors. The terms, covenants, and conditions
herein contained shall be binding upon and inure to the benefit of the successors and assigns of
the parties hereto.
11.3 Entire Agreement. This Agreement including all recitals and
exhibits hereto contains all of the covenants, conditions, and agreements between the parties and
shall supersede all prior correspondence, agreements, and understandings both verbal and
written. No addition or modification of any term or provision shall be effective unless set forth
in writing and signed by both Seller and Buyer, and pursuant to a resolution or ordinance (as
applicable) approved and adopted by the Alameda City Council.
11.4 Attorney's Fees. In the event either party to this Agreement
institutes an action or proceeding brought pursuant to Article 10 or otherwise, to interpret or
enforce the terms hereof, or to obtain money damages the prevailing party shall be entitled to
recover from the other, in addition to costs and judgment as awarded by the referee or court, its
attorney's fees incurred therein. The prevailing party shall include, without limitation, a party
who dismisses an action or proceeding for recovery hereunder in exchange for consideration
substantially equal to the relief sought on the action or proceeding. In the event Seller is
represented in a proceeding by attorneys employed with the City Attorney's Office, any award of
CITA\52945 \985635.6 15
attorney fees to Seller shall be measured by the reasonable fees that would have been paid by
Seller had it instead been represented by outside counsel.
11.5 Brokers' Commission. Seller and Buyer each represent and
warrant to the other that neither party has dealt with any real estate brokers or finders with
respect to the transaction contemplated hereby. Each party agrees to indemnify and hold
harmless the other from any claim or claims, and costs and expenses, including attorneys' fees,
incurred by the indemnified party in conjunction with any claim or claims of any broker or
brokers to a commission in connection with this transaction as a result of the actions of the
indemnifying party.
11.6 Governing Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of California. The venue of any action
brought pursuant to this Agreement shall be the County of Alameda.
11.7 Captions. All captions and headings in this Agreement are for the
purposes of reference and convenience and shall not limit or expand the provisions of this
Agreement.
11.8 Time. Time is of essence of every provision herein contained in
this Agreement.
11.9 CounteMarts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all counterparts shall constitute one agreement.
11.10 Notices. All notices, requests or other communications required or
permitted to be given in connection with this Agreement shall be in writing and shall be
personally delivered (with prompt confirmation by registered or certified mail, postage prepaid),
or by commercial courier service, or by registered or certified mail, postage pre -paid, or
transmitted by electronic mail addressed to the party whom it is directed at the following
addresses, or at such other addresses as may be designated by notice from such party in the
manner provided herein:
To Seller: City of Alameda
Alameda City Hall
2263 Santa Clara Ave.
Alameda, CA 94501
Tel: (510) 747 -4700
Attn: City Manager
with a copy to: City of Alameda
Alameda City Hall
2263 Santa Clara Ave.
Alameda, CA 94501
Tel: (510) 747 -4750
Attn: City Attorney
CITA\52945 \985635.6 16
To Buyer:
Notices which are delivered by hand shall be deemed received upon delivery or the date on
which delivery is refused; Notices which are deposited in the United States Mail in accordance
with the terms of this Section shall be deemed received three (3) days after the date of mailing
and notices delivered by commercial courier service shall be deemed received the date of actual
delivery, or the date on which delivery is refused. The foregoing addresses may be changed by
notice to the other party as herein provided.
11.11 Escrow Instructions. The Parties agree to execute such instructions
to Escrow Agent and such other instruments and do such other and further acts as may be
reasonably necessary to carry out any of the provisions of this Agreement.
11.12 Construction. The language in all parts of this Agreement shall in
all cases be construed simply according to its fair meaning and not strictly for or against any of
the parties hereto. Section headings of this Agreement are solely for convenience of reference
and shall not govern the interpretation of any of the provisions of this Agreement. References to
"sections" are the Sections of this Agreement, unless otherwise specifically provided.
11.13 Possession. Possession of the Property shall be delivered to Buyer
upon Closing.
11.14 Non - Liability of Officials, Employees and Agents. No City
elected or appointed official, board member, commission, officer, employee, attorney, agent,
volunteer or their respective successors and assigns shall be personally liable to Buyer, or any
successor in interest, in the event of a default under or breach of this Agreement by Seller.
11.15 Severability. If any section, term or provision of this Agreement is
held invalid by the referee or a court of competent jurisdiction, all other sections, terms or
severable provisions of this Agreement shall not be affected thereby, but shall remain in full
force and effect.
[Signatures follow on next page. ]
CrFA\52945 \985635.6 17
IN WITNESS WHEREOF, the Parties hereto have executed one (1) or more
copies of this Agreement, on the date(s) set forth below, effective as of the day and year first
above written.
City of Alameda,
a charter city and municipal corporation
By:
Name:
By:
Jill Keimach Date:
City Manager
Date:
By:
Name:
Date:
Approved as to Form
an
Andrico Q. Penick
Assistant City Attorney
CrrA\52945 \985635.6 18
EXHIBIT A
FINAL MAP
CITA\52945\985635.6
CITA\52945 \985635.6
QUITCLAIM DEED
CITA\52945 \985635.6
P.V.VMV.VA
I, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by the Council of the City of Alameda on the 4th day of
October, 2016, by the following vote to wit:
AYES: Councilmembers Daysog, Ezzy Ashcraft, Matarrese, Oddie
and Mayor Spencer — 5.
NOES: None.
ABSENT: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official
seal of said City this 5th day of October, 2016.
Lara Weisiger, Oy Clerk
City of Alameda
^? C-
Jan0q�/Kern, City Attorney
City Alameda