Ordinance 3192CITY OF ALAMEDA ORDINANCE NO. 3192
New Series
APPROVING A PURCHASE AND SALE AGREEMENT OF BUILDING
40, LOCATED AT 800 WEST TOWER AVENUE AT ALAMEDA POINT,
WITH BLADIUM, INC, A CALIFORNIA CORPORATION.
WHEREAS, Bladium, Inc. ("Bladium") entered into a lease agreement to occupy
Building 40 on February 1, 2000 vWth the City of Alameda (the "Bladium Lease"); and
WHEREAS, Bladium is a sports and fitness club operating out Building 40 which
consists of approximately 104,000 square feet of rentable space; and
WHEREAS, the Bladium lease, which included an exclusive use clause, will expire
on June 30, 2035; and
WHEREAS, The City officially gained title to the property on July 10, 2017 and
Bladium subsequently exercised its purchase option for Building 40 for a total purchase
price of $7,900,000; and
WHEREAS, after purchasing the property, Bladium will continue to operate it as a
sports and recreational facility, but has requested a reduced exclusive use covenant; and
WHEREAS, after purchasing the property Bladium must comply the Master
Infrastructure Plan (MIP) which was adopted on March 31, 2014; and
WHEREAS, the Transportation Demand Management Plan (TDM) was adopted
on May 20, 2014 and Bladium, Inc will be required to comply with TDM Plan as required
by the Mitigation Monitoring and Reporting Program (MMRP) from the Alameda Point
EIR, and the Alameda Point Zoning District in Section 30-4.24; and
NOW THEREFORE, BE IT ORDAINED by the City Council of the City of Alameda
that by four affirmative votes that:
Section 1. The City Manager of the City of Alameda or her designee is hereby
authorized to negotiate, execute, for and on behalf of the City of Alameda, a purchase
and sale agreement with Bladium, Inc., a California corporation, for Building 40 at
Alameda Point in a form substantially the same as set forth in the draft purchase and sale
agreement attached as Exhibit A, subject to such technical or clarifying revisions as are
reasonably determined necessary by the City Manager and approved by the City
Attorney, and the City Clerk is hereby authorized and directed to attest to the same.
Section 2. If any section, subsection, sentence, clause or phrase of this ordinance
if, for any reason, held to be invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this ordinance. The City Council
of the City of Alameda hereby declares that it would have passed this ordinance, and
each section, subsections, clause, or phrase hereof, irrespective of the fact that any one
or more sections, subsections, sentences, clauses and phrases are declared to be invalid
and unconstitutional.
Section 3. 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.
residing fficer of he Cily Council
Attest:
-�'/UVVO'- U, ,
Lara Weisiger, City 1 rk
a
AGREEMENT FOR PURCHASE AND SALE
THIS AGREEMENT FOR PURCHASE AND SALE ( "Agreement ") is made and
entered into as of , _, 2017 (the "Effective Date ") by and between the CITY OF
ALAMEDA, a charter city and municipal corporation ( "Seller" or "City "), and BLADIUM, INC., a
California corporation or Permitted Assignee ( "Buyer ").
RECITALS
A. The Alameda Reuse and Redevelopment Authority ( "ARRA "), Seller's
predecessor -in- interest, and Buyer entered into that certain Agreement of Sublease dated as of
February 1, 2000, as amended by that certain Addendum to Sublease of even date therewith
the ( "Addendum to Sublease ")and as further amended by that certain Amendment to Sublease
dated as of June 16, 2000 and as further amended by that Second Amendment to Sublease
dated as of November 2015 (collectively the "Lease "), whereby Buyer leased from the ARRA
certain premises located at the former Naval Air Station Alameda (the "NASA") which premises
are located in Building 40, with an address of 800 W. Tower Avenue, Alameda, California (the
"Building ", together with appurtenant land (the "Premises").
B. At the time of execution of the Lease, that portion of the NASA upon
which the Premises were located was owned by the United States of America acting by and
through the Department of the Navy (the "Government "). The NASA was closed as a military
installation and was subject to disposal pursuant to an accordance with the Defense Base
Closure and Realignment Act of 1990 (P.L.101 -510), as amended (the "Act "). Pursuant to the
terms of the Act, the ARRA applied for a conveyance from the Government of a portion of the
NASA to be used and developed in accordance with the "NAS Alameda Community Reuse
Plan" dated as of January 1996 as amended in September 1997 prepared by the ARRA and
approved by the Department of Housing and Urban Development on April 23, 1996.
C. The Government approved the ARRA's application covering portions of
the NASA, including the land upon which the Premises was situated and agreed to convey the
same pursuant to the Economic Development Conveyance Memorandum of Agreement dated
June 6, 2000 (the "ED MOA" ). Prior to such conveyance, immediate possession of the NASA
was granted to the ARRA pursuant to the terms of that certain Large Parcel Lease, originally
commencing on March 24, 1996 (the "Large Parcel Lease ") to which the Lease was
subordinate. Pursuant to an Agreement for the Conveyance of Real Property entered into as of
June 6, 2000, as amended, between the Government and the ARRA, the Large Parcel Lease
was superseded by that certain Lease in Furtherance of Conveyance dated as of June 6, 2000,
as amended by that certain Amendment No. 1 dated as of November 28, 2000 and as further
amended by that certain Amendment No. 2 dated March 30, 2009 between the Government and
the ARRA (the "LIFOC ").
D. On January 31, 2012, the Governing Board of the ARRA assigned its
rights, assets, liabilities and obligations to the City of Alameda and, on February 7, 2012, the
City Council accepted the assignment. On March 9, 2012, the U.S. Department of Defense,
Office of Economic Adjustment acknowledged the City of Alameda as the Local Reuse Authority
for the former Alameda Naval Air Station and on April 4, 2012, the Government acknowledged
the City of Alameda as the Local Reuse Authority within the meaning of the Act.
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E. The portion of the NASA upon which the Premises are located was
conveyed to the City by the Government by a quitclaim deed dated June 4, 2013, recorded June
6, 2013 as Series No.: 2013- 199812 of Official Records in the Office of the County Recorder,
Alameda County, California (the "Navy Quitclaim Deed "). Upon conveyance of the Premises
from the Government to the City, the City became both the landowner and the landlord under
the Lease and the LIFOC terminated as to the Premises.
F. The Navy Quitclaim Deed conveyed the Premises to the City subject to
certain covenants, conditions, restrictions, easements and encumbrances as set forth therein.
The Premises were further encumbered by those certain restrictions set forth in the Declaration
of Restrictions (former Naval Air Station Alameda) dated June 4, 2013 and recorded June 6,
2013 as Series No.: 2013 - 199782 in the Office of the County Recorder of Alameda County
( "Declaration of Restrictions "), and the Covenant to Restrict Use of Property also dated June
4, 2013 as recorded June 6, 2013 as Series No.: 2013- 199838 (the "CRUP "). Copies of the
foregoing documents were delivered to Buyer in connection with the execution of the Second
Amendment to Sublease.
G. The Addendum to Sublease included an option to purchase the Premises,
which option was to become effective only upon acquisition of fee title to the Premises by the
City pursuant to a conveyance from the Government and after restrictions on the use and
ownership of the Premises imposed by the State of California Lands Commission on Tidelands
Trust property were removed (the "Purchase Option ").
H. The land upon which the Premises are located was conveyed by the
Government in 2013, as set forth in Recital F above. Pursuant to a Naval Air Station Alameda
Title Settlement and Exchange Agreement, dated February 18, 2014, and recorded on June 30,
2014 in the Office of the County Recorder of Alameda County as Series No.: 2014154593 (the
"Exchange Agreement ") the public trust on certain lands within the--NASA,-.including the
property subject to this transaction, was terminated.
I. At the time the Purchase Option was granted, the property upon which
the Premises was situated had not been surveyed, subdivided or assigned an Assessor Parcel
Number. The City has therefore prepared a Tentative Parcel Map (the "Tentative Map ") a copy
of which is attached hereto as Exhibit A, and draft conditions of approval (the "Draft
Conditions ") attached hereto as Exhibit A -1. The Tentative Map includes the reservation of
public right of ways for Saratoga Street to the west of the Premises and Seaplane North,
crossing the southern 76 feet of the Premises. Accordingly, the boundaries of the parcel that
would be created by the Tentative Map (the "Tentative Parcel ") do not match the boundaries of
the Premises, but the Tentative Parcel includes approximately the same area as the Premises.
J. For the purpose of improving access to the Parcel from West Tower
Avenue, the City will grant Buyer the use of a strip of land, approximately 0.11 acres in size,
depicted on the survey ( "Survey") attached hereto as Exhibit A -2 as the Future Transfer Area
(the "Future Transfer Land "). Buyer acknowledges that the Future Transfer Land is under the
City's possession and control pursuant to the LIFOC, but that the Government still owns fee
simple title to the Future Transfer Land. As set forth herein below, at such time as that land is
conveyed to the City by the Government, the City will convey the same to Buyer. The Parcel
and the Future Transfer Land are sometimes collectively referred to herein as the "Property".
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K. Buyer has exercised its Purchase Option and Buyer and Seller have
agreed upon a Purchase Price and, by this Agreement, wish to more clearly specify the terms
and conditions upon which Seller has agreed to sell and Buyer has agreed to buy the Property.
L. Pursuant to Section 3 -10 of the Charter of the City of Alameda, the City
Council adopted Ordinance authorizing the sale of 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. Recitals. The recitals set forth above are incorporated herein and made a part of
this Agreement as though set forth in full herein.
2. The Property. 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
Property, upon all of the terms, covenants and conditions set forth in this Agreement.
3. [Intentionally Omitted]
4. Purchase Price. The Purchase Price for the Property is Seven Million, Nine
Hundred Thousand and 00/100 Dollars ($7,900,000.00) (the "Purchase Price ") and shall be
paid by Buyer to Escrow Holder (as defined at Section 6.1 below) in good, same day funds, on
or before the Closing Date.
5. Condition of Property and Risk of Loss.
5.1 Risk of Loss. Until the Close of Escrow, the risk of any loss or damage to
the Parcel shall be governed by the terms and conditions of the Lease. The risk of loss or
damage to the Parcel shall pass to Buyer upon the recordation of the Quitclaim Deed on the
Closing Date.
5.2 Property Sold in an "As -Is" Condition "With All Faults ". Seller and Buyer
mutually acknowledge and agree that the Property is being sold in an "As -Is" condition "with all
faults" known or unknown, contingent or existing, and without any representation or warranty by
Seller as to its fitness for any purpose. Buyer has the sole responsibility to fully inspect the
Property, to investigate all matters relevant thereto and to reach its own independent evaluation
of the risks (environmental or otherwise) or rewards associated with the ownership of the
Property. Effective as of the Closing Date, except as otherwise expressly set forth herein,
Buyer hereby waives and releases Seller and its successors and assigns from and against any
claims, obligations or liabilities arising out of or in connection with the physical condition of the
Property.
5.3 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 Seller from any present or future claims and liabilities of any nature
arising from or relating to the presence or alleged presence of hazardous materials in, on, at,
from, under, or about the Property including, without limitation, any claims under or on account
of any hazardous materials laws regardless if other such hazardous materials are located in, on,
at, from, under, or about the Property prior to or after the date hereof.
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5.4 Waiver of Energy Consumption Disclosure. Buyer acknowledges that it
will have been in possession of most of the Parcel and will have contracted directly with the
providers of any utilities prior to the Effective Date of this Agreement and, to the extent that
Seller may have any energy use disclosure requirements under state or federal law
implementing regulations promulgated pursuant thereto, Buyer does hereby unconditionally
waive and release Seller from any such disclosure requirements.
5.5 Title. Upon and subject to Close of Escrow, Seller shall convey title to the
Parcel to Buyer by quitclaim deed, free of monetary encumbrances other than non - delinquent
taxes or assessments, and otherwise subject only to the matters described in the following
sentence. Buyer acknowledges that the Parcel will be conveyed subject only to all of the
Restrictions as described in Recital F, such public and private easements as described in
Exhibit A, the Reciprocal Easement Agreement described in Section 6, the Declaration of
Covenants Conditions and Restrictions Providing for Reciprocal Easements, Joint Use and
Maintenance, recorded on July 3, 2017 in the Official Records of Alameda County as Instrument
No. 2017144870 (the "CC &Rs ") and such laws, ordinances and regulations are referred to in
Section 13.14 below.
5.6 Water Infrastructure. Seller represents to Buyer that water at Alameda
Point has been supplied by East Bay Municipal Utility District ( "EBMUD ") but the water system
itself was designed, installed and historically operated by the Navy. The water system
infrastructure at Alameda Point was neither built, nor maintained to the standards of EBMUD,
and does not current meet EBMUD standards. Seller hereby agrees that, until the water supply
system is improved to EBMUD standards, Buyer cannot become an EBMUD customer. Until
EBMUD is prepared to contract directly with Buyer, water will continue to be provided by means
of the current water supply system. The City will charge and bill Buyer for water usage at a rate
no greater than the rate paid by the City to EBMUD, and may bill Buyer at a lower rate. The
City intends to replace the water infrastructure at Alameda Point and, to that end, has entered
into a phased water system infrastructure agreement with EBMUD. At such time as the water
system is improved to meet the requirements set forth in EBMUD's Regulations Governing
Water Service, the City will cease providing water to the Property and Buyer will be required to
contract directly with EBMUD. Buyer may be required to satisfy certain EBMUD requirements
which may include the establishment of proper frontage on an EBMUD water main, compliance
with all water efficiency requirements, and payment of certain fees. The City will be responsible
for an amount not to exceed $526,000 for System Capacity Charges ( "SCC ") and an amount not
to exceed $124,000 for Wastewater Capacity Fees ( "WCF ") assessed by EBMUD necessary for
establishing initial EBMUD water services to the Property at the time the SCC and WCF are due
to EBMUD. Buyer shall be responsible for the payment of any other fees and costs which may
be assessed by EBMUD, including any SCC or WCF in excess of the above - referenced
amounts. Before Closing, Seller will deliver a letter to Buyer substantially in the form of Exhibit
D and Buyer shall sign the acknowledgment and return the same to Seller, either outside of or
by deposit with Escrow Holder.
6. Reciprocal Easements.
6.1 Reciprocal Easement Agreement. That approximately 0.64 acre strip of
the Premises that is not included in the Tentative Parcel and is designated on the Survey as
future Seaplane North right of way (the "Seaplane North Property") is currently used by Buyer
for ingress, egress and parking. That approximately 0.95 acre area to the west of the Premises
which is included in the Tentative Parcel and is designated on the Survey as the "Additional
Land Area" is currently used by the public as a drive aisle providing access to the Premises and
CITA\5141 Al 006979.8 4
adjacent properties. Concurrently with the execution hereof, the parties shall execute a
Reciprocal Easement Agreement in the form of Exhibit B whereby Seller grants to Buyer an
easement over the Seaplane North Property for ingress, egress and parking and Buyer grants
to the City an easement over the Additional Land Area to remain open as a drive aisle, available
for public use. Said Reciprocal Easement Agreement shall terminate upon the development of
Seaplane North and Saratoga Street, as set forth therein.
6.2 Driveways and Sidewalks. In connection with the construction of any site
improvements on the Seaplane North Property or the Additional Land Area, Seller shall modify,
at Seller's sole cost and expense, the three (3) existing driveways and adjacent sidewalks on
the border of the Property adjacent to West Tower Avenue, as shown on Exhibit A -2 attached
hereto. In addition, Seller shall install, at Seller's sole cost and expense, three (3) additional
driveways and adjacent sidewalks on the border of the Property, as shown on Exhibit A -2
attached hereto, including one driveway on the north side of the Additional Land Area, one
driveway on the south side of the Additional Land Area, and one driveway on the east side of
the Seaplane North Property. The final locations of said driveways shall be as mutually agreed
upon by Buyer and the City of Alameda Public Works Director and Civil Engineer.
6.3 West Tower Access. Seller shall grant to Buyer a nonexclusive right to
use the driveway and drive aisle to the east of the Parcel in the area depicted on Exhibit A-2.
(the "West Tower Access Drive ") Buyer understands and acknowledges that the West Tower
Access Drive is currently under the City's possession and control pursuant to the LIFOC. At
such time as fee title to that land is conveyed by the Government to the City, the City reserves
the right, in its sole discretion, to terminate such access rights and include none, all or a portion
of the current drive aisle in a newly created parcel.
6.4 Existing Parking Spaces. Seller agrees that until the site improvements
on the Seaplane North Property and the Additional Land Area have been completed, Buyer
shall retain the right to continue to use the existing parking spaces located on the Parcel but in
no event shall Buyer be entitled to the use of more parking spaces then were afforded it under
the Lease.
7. Use Restrictions. The Lease includes certain use restrictions on property located
within the NSA and controlled by the City, whether as the fee owner or as the Tenant under the
LIFOC (the "Exclusive Use Provision "). Seller has agreed to retain certain Exclusive Use
Provisions after Closing through June 30, 2035, which would be the expiration of the Lease
Term if Buyer were to exercise its final option for a Third Renewal Term, as defined in the
Lease. In consideration thereof, Buyer has agreed to maintain, or cause to be maintained, the
Building and the Property (including any in -line hockey, arena soccer, fitness, and rock climbing
facilities, restrooms and commons use facilities, if any) in good condition and repair, subject
only to normal wear and tear. Such maintenance obligations also include the surface of all
parking areas and drive aisles, all surface and storm lateral drainage systems, sanitary sewer
lateral connections and exterior lighting fixtures (collectively, the "Maintenance Standards ").
Buyer's compliance with the Maintenance Standards shall be judged by a comparative standard
with the custom and practice generally applicable to comparable high quality sports, recreational
and fitness facilities with comparable prices for similar services in Alameda and Contra Costa
Counties. Pursuant to the foregoing, concurrently with the execution of this Agreement, the
parties shall also execute an Agreement Regarding Use Restrictions, substantially in the form of
Exhibit C.
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8. Compliance with CC &Rs. City acknowledges and agrees that as operated
today, the Property satisfy the requirement set forth in Section 10.18 of the CC &Rs that the
Property constitute a high quality commercial development consistent with other commercial
centers in the Oakland metropolitan area.
9. Closing.
9.1 Establishment of Escrow. Concurrent with the execution of this
Agreement, Seller shall establish an escrow with First American Title Company, 1850 Mt. Diablo
Boulevard, Suite 300, Walnut Creek, California 94596 ( "Escrow Holder" or "Title Company")
and shall promptly give Buyer notice of the escrow number for this transaction.
9.2 Time. The "Close of Escrow" or "Closing" shall mean and refer to the
payment of the Purchase Price to Seller and the concurrent recordation of the Quitclaim Deed,
which shall occur through escrow with Escrow Holder, within thirty (30) days after Seller's
execution and delivery of this Agreement, or such shorter time as the parties may agree. The
`Closing Date" shall mean and refer to the date on which the Close of Escrow occurs. The
foregoing notwithstanding, Buyer shall have three (3) options to extend the Closing Date in
increments not to exceed thirty (30) days each, for a cumulative total of ninety (90) days. Buyer
may exercise its extension,.options by delivering written notice to Seller and Escrow Holder not
less than five (5) business days before the then currently scheduled Closing Date. In addition to
the foregoing options to extend the Closing Date (which options to extend may be exercised
before or after an extension of the Closing Date for Economic Force Majeure (as defined
below), Buyer shall have the right to extend the Closing Date for up to an additional two (2)
years as a result of Economic Force Majeure. Buyer shall notify Seller as soon as possible prior
to the then scheduled Closing Date in the event that Buyer needs to postpone the Closing Date
as a result of Economic Force Majeure, and Buyer shall give Seller at least thirty (30) days' prior
notice of the new Closing Date. As used herein, "Economic Force Majeure" shall mean a major
economic collapse in the United States. "Economic Force Majeure" shall not refer to a mere
spike in interest rates or other change in the market that merely makes the economic terms of
this Agreement less favorable to Buyer than on the date of Buyer's execution of this Agreement.
9.3 Deposit of Documents by Seller. On or before the Closing Date, Seller
shall deposit with Escrow Holder:
9.3.1 the final Map, certified and acknowledged for recordation;
9.3.2 a duly executed and acknowledged quitclaim deed conveying the
Parcel to Buyer;
9.3.3 a duly executed and acknowledged Agreement Regarding Use
Restrictions;
9.3.4 Reciprocal Easement Agreement, with duplicate original signature
pages, duly executed and acknowledged by Seller;
9.3.5 written instructions to Escrow Holder instructing the Escrow
Holder to close the escrow in accordance with the terms of this Article;
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9.3.6 any other documents as may be reasonably requested by Buyer
or the Escrow Holder as may be necessary to consummate the transaction including, but not
limited to, any statement of information requested by the Escrow Holder.
9.4 Deposit of Documents and Money by Buyer. On or before the Closing
Date, Buyer shall deposit with Escrow Holder:
9.4.1 the Purchase Price in cash, increased or reduced, as the case
may be, by Buyer's share of the closing costs and other prorations;
9.4.2 a duly executed and acknowledged Agreement Regarding Use
Restrictions;
9.4.3 Reciprocal Easement Agreement with duplicate original signature
pages, duly executed and acknowledged by Buyer;
9.4.4 written instructions to the Escrow Holder instructing the Escrow
Holder to close the escrow in accordance with the terms of this Article; and
9.4.5 any other documents or money as may be reasonably requested
by the Seller or the Escrow Holder as necessary to consummate the transaction.
9.5 Closing. Escrow shall close by Escrow Holder's performing of the
following in the following order:
9.5.1 recording the final Map;
9.5.2 recording the Agreement Regarding Use Restrictions;
9.5.3 recording the Quitclaim Deed conveying the Parcel to Buyer;
9.5.4 recording the Reciprocal Easement Agreement;
9.5.5 payment of the Purchase Price to Seller, less Seller's share of
closing costs and prorations as required by this Article; and
9.5.6 obtaining from the Title Company for delivery to Buyer an owner's
policy of title insurance in form and with endorsements designated by Buyer in the amount of
the Purchase Price showing title to the Parcel vested of record as of the Closing Date in Buyer.
9.6 Closing Costs and Prorations.
9.6.1 Closing Costs. Seller and Buyer shall each pay one half (1/2) of
all escrow fees.
Buyer shall pay:
(a) All premium costs and expenses incurred in connection
with any policy of title insurance obtained by or on behalf of Buyer;
(b) 50% of any real estate transfer tax;
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(c) Recording fees, if any; and
(d) The expense of its own counsel.
Seller shall pay:
(e) 50% of any real estate transfer tax.
(f) The expense of its own counsel.
Any other closing costs not specified herein shall be divided equally between the parties.
9.7 Prorations and Adiustments. The following shall be prorated and
adjusted between Seller and Buyer as of the Closing Date, except as otherwise specified:
9.7.1 It is acknowledged that prior to the Closing Date, the Parcel has
not been subject to ad valorem taxes or assessments thus no proration of such taxes is
required. The foregoing notwithstanding, Buyer shall remain solely responsible for payment of
any Personal Property Taxes or possessory interest taxes for the period prior to Closing;
9.7.2 All maintenance and repair obligations and expenses of Seller
pursuant to the Lease shall be prorated effective as of 11:59 p.m. on the day prior to the Closing
Date. If the exact amount of any item to be prorated is not known as of the Closing Date, the
proration shall be based upon a reasonable estimate thereof made by Seller and Buyer, and, as
soon after the Closing as the exact amount of the item is known, the proration shall be adjusted.
9.7.3 There shall be credited against the Purchase Price the amount of
any Base Rent paid and attributable to the period from and after the Closing as prorated based
upon the number of days in the month in which the Closing occurs.
10. Conveyance of the Future Transfer Land. Seller shall use reasonable efforts to
enforce its right to acquire the Future Transfer Land from the Government in accordance with
the terms of the EDC MOA and this Agreement. Seller shall not amend the provisions of the
EDC MOA that affects the Future Transfer Land without Buyer's prior written consent, which
should not be unreasonably withheld, conditioned or delayed. Within twelve (12) months after
the Government conveys land which includes the Future Transfer Land, Seller shall convey
same to Buyer by means of a new quitclaim deed. It is agreed that the Purchase Price for the
Property is adequate consideration for the future conveyance of the Future Transfer Land from
Seller to Buyer. Within said twelve (12) month period, Seller and Buyer shall cooperate to
effectuate a merger of the Future Transfer Land with the Parcel, by means of a lot line
adjustment, or otherwise in accordance with the terms of the Subdivision Map Act (Government
Code §§ 66410, et seq.) at Seller's expense.
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.
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11.2 Binding on Successors. The terms, covenants, and conditions herein
r contained shall be binding upon and inure to the benefit of the successors and assigns of the
parties hereto. Buyer shall have the right to assign this Agreement to a newly formed limited
liability company 800 West Tower Avenue, LLC, a Delaware limited liability company
( "Permitted Assignee ").
11.3 Entire Agreement. This Agreement including all 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.
11.4 Attorney's Fees. In the event either party to this Agreement institutes an
action 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
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 in the action or proceeding.
11.5 Brokers' Commission. Seller and Buyer each represent and warrant to
the other that with the exception of Cushman and Wakefield, representing Seller ( "Seller's
Broker "), neither party has dealt with any other 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 other broker or brokers to a
commission in connection with this transaction as a result of the actions of the indemnifying
party. Seller shall pay any commission owing to Seller's Broker in connection with this
transaction.
11.6 Governing Law. This Agreement shall be governed by, and construed in
accordance with the laws of the State of California.
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 Counterparts. 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:
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To Seller: City of Alameda
Alameda City Hall
2263 Santa Clara Ave.
Alameda, CA 94501
Tel: (510) 748 -4509
Attn: City Manager
with a copy to: Miller Starr Regalia
351 California Street, Suite 1110
San Francisco, CA 94104
Attn: F. Gale Connor
Email: aale.connor @msrleaal.com
To Buyer: Bladium, Inc.
800 W. Tower Ave.
Alameda, CA 94501
Attn: Brad Shook
Email: brad @bladium.com
With a Copy to: Allen Matkins
3 Embarcadero Center, 12th Floor
San Francisco, CA 94111
Attn: Nancy Lundeen
Email: nlundeen @allenmatkins.com
Notices which are delivered by hand, deposited in the United States Mail in
accordance with the terms of this Section or delivered by a commercial courier service shall be
deemed received upon actual receipt (unless receipt occurs on a weekend or holiday, in which
case notice will be deemed given on the next- succeeding business day) or refusal of receipt
during normal business hours. Notices which are delivered by electronic mail shall be deemed
to have been delivered on the date sent if sent by 5:00 P.M. Pacific time on any business day,
with delivery made after such hours to be deemed delivered on the following business day,
provided that the sender does not receive any failure of delivery notice. 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 Holder 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 Default. In the event of default by either party hereunder, such party shall
have the right to cure such defaults within thirty (30) days after receipt of notice of such default
from the other party. In the event the sale of the Property does not close as provided herein
because of a default of Buyer that is not cured within the foregoing cure period. Seller may by
the giving of written notice to Buyer, terminate all rights of Buyer to purchase the Property. In
the event of such termination, Buyer shall be solely responsible for any fees or costs payable to
CITA\51417T1006979.8 10
Escrow Holder or the Title Company. In the event of default by Seller that is not cured within
the foregoing thirty (30) day cure period, Buyer may elect one of the following remedies: (a) to
terminate this Agreement, in which event (i) Buyer shall be entitled to the return by the Escrow
Holder to Buyer of any funds then held by Escrow Holder, (ii) Seller shall be solely responsible
for any fees or costs payable to Escrow Holder or the Title Company, and (iii) neither parry shall
have any further rights or obligations under this Agreement, or (b) to bring a suit for specific
performance. Under no circumstances shall Buyer be entitled to actual, special, or
consequential damages, including, but not limited to, anticipated profits.
11.14 Laws, Ordinances and Regulations. Buyer shall take title to the Property
subject to all laws, ordinances, rules, regulations and codes of all City, county, state and federal
authorities relating thereto, including, but not limited to, the restrictions imposed by the Navy
Quitclaim Deed, the Declaration of Restrictions, the CRUP, the Alameda Point Master
Infrastructure Plan, the Alameda Point Town Center and Waterfront Precise Plan, the Alameda
Point Transportation Demand Management Plan and the Environmental Impact Report for
Alameda Point and the Mitigation Monitoring and Reporting Program adopted pursuant thereto.
11.15 Authority. Buyer and Seller represent that the person executing this
Agreement on their behalf is fully authorized to do so and to bind the respective party to the
terms herein.
11.16 Incorporation of Exhibits. Exhibits A through D, inclusive, attached
hereto, are incorporated herein by this reference.
Signatures on following page
CITA \51417\1006979.8 11
IN WITNESS WHEREOF, Seller and Buyer have duly executed this Agreement
as of the Effective Date set forth above.
SELLER:
CITY OF ALAMEDA,
a charter city and municipal corporation
am
Jill Keimach
City Manager
Date:
Approved as to Form
By:
Janet Kern
City Attorney
CITA\51417\1006979.8
BUYER:
BLADIUM, INC.,
a California corporation
By:
Name:
Date:
OWNER'S STATEMENT
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CITY OF ALAMEDA PLANNING BOARD
RESOLUTION NO. PB-17-02
RECOMMENDING THAT THE CITY COUNCIL APPROVE TENTATIVE
PARCEL MAP 10600 (PLN16-0544)
WHEREAS, the City of Alameda submitted an application to create one parcel for an
existing building, public right-of-way, and a remainder parcel on the southern side of West
Tower Avenue at Alameda Point; and
. WHEREAS, the General Plan designafion for the property is Alameda PointMixed
Use,, and
WHEREAS, the property is located within the Alameda Point Waterfront Town
Center Sub-district and Waterfront Town Center Precise Plan (Town Center Plan) area;
and
WHEREAS, the General Plan, Zoning District, and Town Center Plan regulations
encourage adaptive reuse of the buildings in the Naval Air Station Alameda Historic
District (Historic District),, and
WHEREAS, creation of a parcel map for the.property for conveyance purposes will
facilitate adaptive reuse and reinvestment in the property and the Historic District; and
WHEREAS, the Plannihq Board held a noticed public hearing and examined all
pertinent materials on January 23, 2017 and made the following findings relative to the
proposed tentative parcel map application:
A. The proposed tentative parcel map is in conformance with the General Plan and
Zoning for this site. The proposed tentative- Map is consistent with the Mixed Use
General Plan and Town Center Plan and zoning designations for the property.
B, The site Is physically suitable for the proposed development. The proposed
tentative parcel map is for conveyance purposes only and facilitates the adaptive
reuse and reinvestment in the building on the property which is contributor to the
Historic District. All future development or rehabilitation of these buildings milli be
subject to the Waterfront Town Center Specific Plan, Waterfront Town Center Zoning
Sub-district and the -Secretary: of Interior Standards.
C. The site is physically suitable for the density of the development. The proposed
tentative parcel map will not increase the density of the existing development on the
site, as no new development is proposed or approved by this Resolution, Any future
developrnent of the properties will be subject to review under the Town Center Plan
and Waterfront Town Center Zoning Sub-district to ensure that the proposed
1/23W17
P16nnfng Board Meeting Page I of 9
development is suitable for the site, compatible with the biological regulations and
consistent with the Historic District designation.
D. The proposed design of the tentative parcel map and improvements, as
conditioned, will not cause environmental damage or substantially and
avoidably injure fish or wildlife or their habitat. This parcel map is for conveyance
purposes only and will not cause any environmental damage or affect the property's
physical surroundings, All future improvements on the site will be subject to applicable
existing regulations, permits, and deed restrictions designed to protect wildlife on the
adjacent federal property.
E, The design of the tentative parcel map will not conflict with easements acquired
by the public at large for access through or use of property within the parcel
map area. This parcel map is for conveyance purposes only and will not conflict with
any public easements. All future improvements on the site will be subject, where
applicable, to compliance with the Alameda Point Master Infrastructure Plan, which
ensures that all necessary easements and public rights-of-way are preserved,
F. The design of the tentative parcel map and its improvements, if any, will not
cause serious public health problems. This parcel map is for conveyance purposes
only and will not.cause any public health problems. Creation of the parcel map for the
property will facilitate re-investment in the existing properties, which is necessary for
any future upgrades to the existing substandard infrastructure and preserve public
health; and
WHEREAS, the Planning Board finds that the potential environmental impacts of the
parcel map have been evaluated and disclosed pursuant to the California Environmental
Quality Act (CEQA), On February 4, 2014, the City of Alameda certified the Alameda
Point Final Environmental Impact Report (FEIR) in compliance With the California
Environmental Quality Act. The FEIR evaluated the environmental impacts of
redevelopment and reuse of the lands Within the Alameda Point zoning district and Town
Center Plan, which includes the Bladium Parcel Map Area. Consistent with the February
2014 action, the draft conditions of approval of the Tentative Map Application require that
property owners comply with, and implement, all the relevant mitigations measures
adopted by the City Council in February 2014. No further CEQA review is required for
this action.
NOW, THEREFORE, BE IT RESOLVED by the Planning Board of the City of
Alameda recommends that the City Council approve Tentative Map 10600 subject to the
following conditions:
Final Map
1/2312017
Planning Board Meeting
Page 2 of 9
1, All maps filed pursuant to this approval shall be in substantial compliance with the map
tilled, "Alameda Point — Parcel Map 10600 Tentative Map Bladium" prepared by
Carlson, Barbee & Gibson, Inc. dated November 15, 2016 (Exhibit 2 to the January
23, 2017 Staff Report), and on file in the office of ihe Alameda Community
Development Department.
2, The Final Map shall be in substantial compliance with the Tentative Map.
3. The subdivider shall record the Final Map within twenty -four (24) months of approval,
or conditional approval of the Tentative Map by the City Council. An extension of time,
not to exceed and additional'twelve (12) months, for the filing of the Final Map may be
granted by expiration of the approved or conditionally approved Tentative Map- ,
4. Prior to the City Council approval of the Final Map, the Applicant shall submit a Mylar
copy and a CAD file of the Final Map. I
5. Final Maps shall show all existing and proposed easement locations, uses and
recording information, including, any reciprocal use and access easements necessary
to allow the City to maintain existing access and use along the western side of
proposed Bladium property and Bladium, to maintain existing access and use along
City's proposed Seaplane North public right-of-way until such time as Saratoga
Avenue and Seaplane North are constructed, as depicted on Exhibit B. The Owner's
Statement shall list all easements to be dedicated and the Certificate of City Clerk
shall list all public easements to be abandoned (With recording information) as part of
the Final Map.
6. Concurrent with the transfer of property, the City shall retain a utility easement.to allow
the City to access and maintain existing utilities within the property that have common
benefit,to surrounding areas.
Land Use and Redevelopment
7. CEQA: Prior to issuance of a Building Permit or Site Improvement Permit, the
applicant shall submit a Mitigation Measure Compliance Checklist confirming
compliance with all required environmental mitigation measures contained in the
MMRP adopted by the Alameda City Council on February' 4, 2014, for the
redevelopment and reuse of Alameda Point.
8. Alameda Point Waterfront ,and Town Center Plan Consistency. Any future design
review and development applications for this property will be subject to consistency
with the adopted Alameda Point Waterrront and Town Center Plan, where appropriate.
9. Infrastructure Improvement Plans: Prior to issuance of a Building Permit or Site
. Improvement Permit, the applicant shall submit an Infrastructure Improvement Plan
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Planning Board Meeting Page 3 of 9
for the improvement of the on-site and adjacent off -site streets, open space, waste.
water, storm water, potable water, recycled water, power, natural gas, and
communications facilities for each phase of development, if applicable. The
improvement plans shall be reviewed for consistency with the Town Center Plan, MIP,
and the AMC requirements. The plans shall be prepared, signed and stamped as
approved by a registered civil engineer licensed in the State of California. The
engineer shall also assume responsibility for inspection of the on-site construction
work, including but not limited to parking lots, pathways, storm facilities and, sewer
facilities, and shall certify to the City, prior to acceptance of the work or issuance of
any occupancy permit, including a temporary occupancy permit, whichever comes
first, that the installation of the on -site work (excluding the building and foundation)
was constructed in accordance' with the approved plans. All required public frontage
and street improvements shall be designed, built, and dedicated to the City in
accordance with City ordinances, and Public Works Department standards with
respect to such improvements and shall include curbs, gutters, sidewalks, street trees,
storm water treatment controls, landscaping and irrigation, streetlights, etc.
10. Design Review Approval: Priorto issuance of any Building Permit or Site Improvement
Permit in preparation of exterior changes to existing buildings or new vertical
development, the applicant shall submit an application for Design Review and
approval by the Planning Board. The Design Review application shall include any
buildings, landscape improvements, open spaces and parks, and/or parking lots
proposed for the area to be improved. All Building Plans and Site Improvement Plans
submitted for permits shall be reviewed for compliance with the Design Review
findings of'AMC Section 30-36 and 37 by the City of Alameda Planning Board.
11. NAS Alameda Historic District Certificate of Approval: Prior to issuance of a Building
Permit or Site Improvement Permit in preparation of exterior changes to existing
buildings or new vertical development, the applicant shall submit all final proposed
changes to the cultural landscape to the Historical Advisory Board for review and
approval. Ail Building Plans and Site Improvement Plans submitted for permits within
the Historic District shall be reviewed for compliance with the Historic District and
Cultural Landscape Guidelines, the Secretary of Interior Standards for the
Rehabilitation of Historic Structures, and AMC Section 13-21 Preservation of Historical
and Cultural Resources by the City of Alameda Historical Advisory Board.
12. Biological Regulations and On-Site Lighting: Prior to Design Review approval, and
issuance of a Building or Site Improvement Permit, the applicant shall submit a
Biological Opinion Compliance Checklist confirming compliance with all required
conditions set forth in the Declaration of Restrictions for the Former Naval Air Station
Alameda (Declaration) consistent with -the Biological Opinion issued by the U.S.
Department of Fish and Wildlife, and Exhibit C of the Memorandum of Agreement
between the City of Alameda and Department of Veteran's Affairs (Alameda Point
Lighting Mitigation Measures).
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13. Transportation Demand Management Plan Compliance Strategy: Prior to issuance of
a Building or Site Improvement Permit, the applicant shall submit a Transportation
Demand Management Plan Compliance Strategy to ensure compliance with the
Alameda Point Transportation Demand Management Plan.
14. Public Trust Exchange Act and Agreements: All use of land and buildings and new
construction on Public Trust Lands shall be subject to the public trust for commerce,
navigation and fisheries and shall be reviewed for consistency with the Naval Air
Station Alameda Public Trust Exchange Act, Chapter 734, Statutes of 2000, as
amended by Chapter 429, Statutes of 2011 and the Naval Air Station Alameda
Exchange Agreement regarding Public Trust Lands at Alameda Point.
15. Parking Management Plan: Unless completed as part of the TDIVI Compliance
Strategy, prior to issuance of the first Occupancy Permit, the project applicant and/or
property owner shall submit a Parking Management Plan. The plan Will address the
management and pricing of public and private on-site spaces and public on-street
parking and public parking lots and structures.
16, Other Agency Approvals: Prior to issuance of building permit(s) for work within
jurisdictional lands, the applicant shall provide evidence that all required approvals,
permits, or waivers from Bay Conservation and Development Commission (BCDC),
Regional Water Quality Control Board (RWQCB), including compliance with the
existing 401 Certificatioin for the construction of a stormwater outfall, and/or the Army
Corp. of Engineers. The final Improvement Plans shall incorporate all other agency
comments.
Improvement Plans
16. Potable Water: The developer/applicant shall be responsible for potable water
infrastructure consistent with the MIP to serve the project, whose design shall be
shown on the Improvement Plans to the satisfaction of EBMUD, the Public Works
Director, and the Fire Chief.
17.Storm Water Quality: The developer/applicant shall incorporate permanent storm
water treatment controls and/or design techniques to manage the quantity and quality
of storm water runoff from a planned development to prevent and minimize impacts to
water quality and be consistent with the MIP and the conditions of the 40I certification
for Alameda Point (401 Certification Conditions). Efforts shall be taken to minimize
impervious surface areas, especially directly connected impervious surface areas.
Roof drains shall discharge and drain to an unpaved area wherever practicable.
Design techniques may include green roofs, rainwater harvesting, vegetated $wales,
vegetated buffer zones, bio retention units, retention/detention basins and ponds, tree
well systems, and the incorporation of pervious surface areas and Low Impact
Development (LID) measures. Storm water treatment measures shall be constructed
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consistent with the latest version of the Alameda County Clean Water Program b s
Provision C3 Technical Guidance Manual. Applicants may also refer to the Bay Area
Storm water Management Agencies Association (BASNAAA) Start at the Source
Manual for technical guidance..
18. Landscape Plans: Prior to the issuance of a Building or Site Improvement Permit, the
developerjapplicant shall include landscape and irrigation plans for both on-site and
off-site improvements consistent with the Town Center Plan and MIP, if applicable.
The plans shall be prepared, signed, and stamped by a licensed landscape architect
and shall be in accordance with the AMC and other regional jurisdictional
requirements. The landscape architect shall also assume responsibility for inspection
of the work and shall certify to the City, prior to acceptance of the work, that the
installation of landscaping and irrigation in the public right-of-way was constructed in
accordance with the approved plans.
19.Waste Water: A sanitary sewage flow analysis, identifying the total peak sanitary
sewage flow quantities generated by the proposed development shall be prepared by
a registered civil engineer licensed in the State of California and submitted as pad of
the construction Improvement Plans and/or Building Permit Plans. The City will
provide the analysis to an independent consultant who will assess the impact of the
proposed development on the City's sanitary sewer system and determine if any
improvements to the City's system are required to ensure sufficient sewage capacity
for this project and any anticipated growth within the associated sewer sub-area. The
applicant/developer will pay for the cost of the modeling study. The
applicant/developer will incorporate any recommended improvements from the sewer
study into the project's improvements plans and be consistent with the MIP,
20. Private Sewer Lateral Program: Upon transfer or ownership, consistent with the City's
private sewer lateral replacement ordinance., the property owner shall comply with the
provisions of the EBMUD Regional Private Sewer Lateral Program (Which the City is
a participant of). Compliance requires that each parcel be issued a Compliance
Certificate by EBMUD for the upper lateral. The applicant/developer shall schedule
verification testing directly with EBMUD. The Public Works Department Will inspect
and perfor ' m verification testing for the public and private sewer mains, manholes, and
other appurtenances in the public or private streets within the parcel, including lower
laterals. The City Will provide their acquired test results for sewer infrastructure that
is privately-owned to EBMUD so Compliance Certificated can be issued for those
parcels. Review the program requirements and cost for Compliance Certificates at
http://Www.eastbaypsi.com/..
21. Storm Drainage: A storm drainage hydrology analysis identifying the 'total. peak
drainage flow quantities to be generated by a proposed development shall be
prepared by a registered civil engineer licensed in the State of California and
submitted as part of the Construction Improvement Plans and/or Building Permit
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Plans. The improvements plans will include any recommended improvements and be
consistent with the MIR
22. Fire Water: The Improvement Plans and Building Peniiit Plans for the project site shall
include a Fire Water System consistent with the MIR The system shall be designed
to the satisfaction of EBMUD and the Alameda Fire Department. The Applicant shall
be responsible for the placement of on-site hydrants. The location and number of
hydrants shall be established in improvements plans. Placement shall be shown on
the Improvement Plans and shall be to the satisfaction EBMUD, the City Fire Chief
and the City Engineer,
23. Fire Safety: Prior to approval of the Improvement Plans, and/or Building Permit Plans,
the applicant shall submit plans for review and approvEit by the Public Works Director
and the Fire Chief, that:
a Providefire hydrants spaced throughout the project as required in California Fire
Code Appendix C. Ensure sufficient fire flow for the development compliant with
California Fire Code Appendix B and AMC 15-1.2 where a maximum reduction of the
fire flow can be reduced by 50% for fire sprinklered buildings,
b Fire hydrant flows shall be a minimum of 1,500 G.P,M. friom anyone hydrant;
c Provide adequate turn around space or acceptable emergency vehicle through
access for any street greater than 150 feet in length;
d Ensure that all roads that are required to be fire access roads have an adequate
turning radii for fire apparatus (inside turning, radius of 28' and outside turning radius
of 44'8"); and
e For all roads designated as fire access roads shall have a minimum fire lane width
of 20' or 26' unobstructed. Should parking within the fire lane be required, the fire lane
width is to be increased to an additional 8' per side for vehicle parking.
24, Utilities, The Improvement Plans and Building Permit Plans shall include facilities and
improvements to ensure that utility services are maintained for existing users
throughout the construction process and the access to such service for maintenance
purposes is preserved throughout the construction process for new utilities,
25. Easements: Prior to approval of the Improvement Plans, and/or Building Permit, the
applicant shall provide offers of dedication for any public utility, emergency access or
public access easements associated with the proposed utilities or fire safety
requirements.
Solid Waste
25. Waste Management Plan: The applicant/developer shall submit a Waste Management
Plan (WMP) to the Public Works Environmental Services Division for approval, if
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applicable, The plan shall describe how the trash and debris will be handled- The
WMP shall be submitted by the developer to Environmental Services prior to start, of
the demolition, remodeling, or .construction work, The Public Works Environmental
Services Division -will review the WMP, and will provide comments that shall be
incorporated into the plans for the project. The project is subject to the WMP
requirement of section 21-24 of the AMC, and must recycle at least 50% of total debris
hauled from the project.
26. External Enclosures: Design of all external enclosures for solid waste, recycling, and
organics shall be approved by the Public Works Director prior to approval of the
improvements plans, or the building permit, whichever comes first. These facilities
are to be designed to prevent water run-on to the area, runoff from the area, and to
contain litter, trash, and other pollutants, so that these Materials are not dispersed by
the wind or discharged to the storm drain system. External enclosures are to be
roofed and/or enclosed. Any enclosures containing food waste shall have floor drains
connected to the sanitary sewer system. If the enclosures are attached to buildings
they shall have fire sprinklers. Internal collection and storage area(s) and the
individual bins and containers provided, shall be adequate in capacity, number, and
distribution to serve the anticipated demand for trash, recycling, and organics as
determined by the Public Works Director.
27. Collection: Internal collection and storage area(s) and the individual bins and
containers provided, shall be adequate in capacity, number, and distribution to serve,
the anticipated demand for trash, recycling, and organics as determined by the Public
Works Department. The trash collection areas shall be accessible to residents and
employees. Each storage area shall be no more than 250 feet from any dwelling unit,
or in the garage. Trash enclosures and/or recycling area shall be covered; no other
area shall drain onto these areas. Drains in any wash or process area shall not
discharge to the storm drain system; these drains should connect to the sanitary
sewer. The applicant shall contact the City and East Bay Municipal Utility District
(EBMUD) for specific connection and discharge requirements prior to building permit
issuance. Discharges to the sanitary sewer are subject to the review, approval, and
conditions.of the City and . EBMUD.
28. Fitted Lids: All solid waste containers, including dumpsters and individual cans or
carts, must have lifted lids which shall remain closed at all times when the container
is not being used
Construefion Conditions
29. Hazardous Materials. The applicant/developer shall provide documentation from a
qualified professional to the City of Alameda stating that adequate soils and ground
water investigations and, where Warranted, remediation, have been conducted to
ensure that there will be no significant hazard related risks to future site users. The
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project sponsor shall ensure that all proposed areas for demolition and abatement
shall be assessed by qualified licensed contractors for the potential presence of lead
based paint or coatings, asbestos containing materials, and PCB - containing
equipment prior to issuance of a demolition permit. During Construction the
developer /applicant shall ensure that all construction crews are properly trained and
made aware of any site contamination issues consistent with the Alameda Point Site
Management Plan (SMP) and MMRP.
30. Utilities: If underground utilities leading to adjacent properties are uncovered and /or
broken, the contractor involved shall immediately notify the Pubiic Works Department
and the Community Development Department and carry out any necessary corrective
action to their satisfaction.
Alameda Municipal Power (AMP)
31. The applicant shall comply to AMP's Rules and Regulations as stated in Article X and
AMP's "Material and Installation Criteria for Underground Electrical Systems" (both
available at www.alamedamc:com) and provide completed "Service Planning Sheets"
for AMP's review prior to submitting plans for building .permits.
32. The applicant shall provide information on the location of transformers and total load
in kilowatts or kilowattivolts (KVA) to AMP for approval prior to building permit
issuance. If necessary, the applicant shall provide (at no charge to AMP) an easement
and access to all AMP facilities on the property prior to issuance of building permits:
1, the undersigned, hereby certify that the foregoing Resolution was duly and
regularly adopted and passed by the Planning Board of the City of Alameda during
the Regular Meeting of the Planning Board on the 23rd day of January, 2017, by the
following vote to wit:
AYES: (6) K6ster, Burton, Curtis, Knox White, Sullivan and Zuppan
NOES: (0)
ABSENT: (1) Mitchell
0
Fdw Thomas, Secretary\
of Alameda Planning Board
1/23/2017
Planning Board Meeting Page 9 of 9
A%INLT
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fi
ABBREWATIONS
AT AWATZT'tA DnTXTT
SURVEY BASE MAP
BUILDING 40 PARCEL
xuc munu. ww",
V-W
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
800 West Tower Avenue, LLC
c/o Bladium, Inc.
800 W. Tower Ave.
Alameda, CA 94501
Attn: Brad Shook
EXHIBIT B
SPACE ABOVE THIS LINE FOR
RECIPROCAL EASEMENT AGREEMENT
THIS RECIPROCAL EASEMENT AGREEMENT, entered into as of this _ day of
2017 ( "Agreement "), by and between the CITY OF ALAMEDA, a charter city and
municipal corporation (hereinafter referred to as "City ") and 800 WEST TOWER AVENUE,
LLC, a Delaware limited liability company, (hereinafter referred to as "Owner ") is made with
reference to the following:
RECITALS:
A. Pursuant to that certain Agreement for Purchase and Sale by and between the
City as seller, and Bladium, Inc., a California corporation ( "Bladium "), as buyer with an effective
date of , 2017 (the "PSA') as assigned by Bladium to Owner, the City has agreed to
sell to Owner a certain parcel of real property located at Alameda Point, commonly known as
800 West Tower Avenue, Alameda, California. To create a legal parcel to convey to Owner, the
City will file and record a parcel map. In furtherance thereof, the City has prepared parcel map
#10600 (the "Parcel Map "), a copy of which is attached hereto as Exhibit A. The property to be
conveyed to Owner at Closing of the PSA is identified on the Parcel Map as Parcel A ( "Owner
Parcel ").
B. The Parcel Map includes the reservation of public right of ways for Saratoga
Street abutting the western edge of the Owner Parcel and Seaplane North, abutting the
southern edge of the Owner Parcel. That approximately 0.64 acre strip identified on the survey
(the "Survey") attached hereto as Exhibit B as the future Seaplane North right of way
( "Seaplane North Property") is currently used by Bladium for ingress, egress and parking
under a lease agreement with the City, dated as of June 16, 2000, as amended (the "Lease "),
which Lease, as between City and Bladium, was terminated upon closing of the PSA (the
"Closing "). That approximately 0.95 acre portion of the Owner Parcel abutting Saratoga Street,
identified on the Survey as the ",Additional Land Area" is currently used by the public as a drive
aisle, providing access to various properties.
C. It is the intent of the parties hereto that Owner may use the Seaplane North
Property for ingress, egress and parking and the Additional Land Area shall remain a drive aisle,
available for public use, all as set forth herein below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
CITA \51417\1006979.8
1. RECITALS. The recitals set forth above are true and correct and are
incorporated herein by this reference.
2. RECIPROCAL GRANT OF EASEMENTS. The City hereby grants to Owner
and Owner's respective employees, agents, representatives, consultants, contractors,
customers and invitees (collectively the "Owner Grantees ") a non - exclusive easement over the
Seaplane North Property for ingress, egress and parking, consistent with its historical uses
under the Lease. Owner hereby grants to the City, for the benefit of and use by the public
(collectively the "City Grantees ") a non - exclusive easement over the Additional Land Area as a
drive aisle, open to the public (each of the easements described in this Section 2 is referred to
herein individually as "Temporary Easement" and collectively as the "Temporary
Easements "). The Seaplane North Property and the Additional Land Area are sometimes
collectively referred to herein as the "Temporary Easement" Areas.
3. TERM OF TEMPORARY EASEMENTS. The term of the Temporary Easements
( "Term ") granted hereby shall commence as of the Closing and shall remain in effect until the
earlier of (a) the date upon which the parties agree to terminate the Temporary Easements or
(b) the day that is ninety (90) days after that day upon which the City provides a written notice
to Owner that the Temporary Easement Areas are required for development of the Saratoga
Street and Seaplane North right of ways. It is the intent of the parties that the Temporary
Easements reciprocally granted hereby terminate simultaneously.
4. CONSIDERATION. The Temporary Easement granted by the City for use of the
Seaplane North Property and the Temporary Easement granted by Owner for use of the
Additional Land Area is each deemed to be adequate consideration for the other.
5. RESTRICTIONS. The Temporary Easement Areas are located on property
known as the former Naval Air Station Alameda, which was conveyed to the City by the United
States of America, acting by and through the Department of the Navy by a quitclaim deed
dated June 4, 2013, recorded June 6, 2013 as Series No. 2013 - 199812 of Official Records in
the Office of the County Recorder, Alameda County, California ( "Quitclaim Deed "). Said
Quitclaim Deed conveyed the Temporary Easement Areas subject to certain covenants,
conditions, restrictions, easements, and encumbrances as set forth therein. The Temporary
Easement Areas are further encumbered by those certain restrictions set forth in the
Declaration of Restrictions (Former Naval Air Station Alameda) dated June 4, 2013 and
recorded June 6, 2013 as Series No.: 2013- 199782 in the Office of the County Recorder of
Alameda County ( "Declaration of Restrictions "). Each party acknowledges receipt of copies of
the Quitclaim Deed and Declaration of Restrictions. Use of the Temporary Easement Areas is
further restricted by the National Environmental Protection Act Record of Decision ( "ROD ") for
the disposal and reuse of the former Naval Air Station Alameda, and all conditions contained
therein. The covenants, conditions, restrictions, easements, rights -of -way, reservations, rights,
agreements, and encumbrances set forth in the Quitclaim Deed, Declaration of Restrictions
and the ROD, as they affect the Temporary Easement Areas, are collectively referred to herein
as the "Restrictions." Any use of the Temporary Easement Areas shall comply with the
Restrictions and a failure to so comply shall constitute a default under this Agreement.
6. COMPLIANCE WITH LAWS. The use by Owner of the Seaplane North
Property and the City's use of the Additional Land Area shall be in accordance with all
applicable laws, ordinances, rules, regulations and codes of the City, county, state and federal
authorities, including the Restrictions.
CITA\51417\1006979.8 2
7. HOLD HARMLESS. Owner shall indemnify, defend and hold harmless the City,
and its City Council members, officers and employees from and against any and all loss,
damages, liability, claims, suits, costs and expenses, including reasonable attorneys' fees,
regardless of the merits or outcome of any claim or suits in any manner connected to use by
the Owner Grantees of the Seaplane North Property except if and to the extent caused by the
gross negligence or willful misconduct of the City Grantees. The City will indemnify and hold
harmless Owner and its officers and employees from and against any and all loss, damages,
liability, claims, suits, costs and expenses, including reasonable attorneys' fees, regardless of
the merits or outcome of any claims or suits in any manner connected with the use by the City
Grantees of the Additional Land Area except if and to the extent caused by the gross
negligence or willful misconduct of Owner or its officers and employees.
8. INSURANCE. Owner shall maintain in full force throughout the Term,
commercial general liability insurance providing coverage on an occurrence form basis with
limits of not less than Two Million Dollars ($2,000,000.00) each occurrence for bodily injury and
property damage combined, covering bodily injury and property damage liability. The policy of
liability insurance required by this Section shall: (i) contain a cross liability endorsement or
separation of insureds clause; (ii) provide that any waiver of subrogation rights or release prior
to a loss does not void coverage; (iii) provide that it is primary to and not contributing with, any
policy of insurance carried by the City covering the same loss; (iv) provide that any failure to
comply with the reporting provisions shall not affect coverage provided to the City, its partners
and property managers; and (v) name the City, RiverRock Real Estate Group and such other
parties in interest as the City may from time to time reasonably designate to Owner in writing,
as additional insureds in an Additional Insured Endorsement. Such additional insureds shall be
provided at least the same extent of coverage as is provided to Owner under such policies.
The additional insured endorsement shall be in a form at least as broad as endorsement form
number CG 20 11 01 96 promulgated by the Insurance Services Office. On or before Closing,
Owner shall furnish to the City a certificate of insurance reflecting that the insurance required
by this Article is in force, accompanied by an endorsement(s) showing the required additional
insureds satisfactory to City in substance and form. Owner shall, from time to time throughout
the Term, provide evidence to the City that such insurance requirements remain in effect.
9. PROHIBITION AGAINST TRANSFERS. Except as otherwise set forth in
Section 11 below, Owner shall not assign, sublicense, hypothecate, or transfer its Temporary
Easement for the use of Seaplane North or any interest therein directly or indirectly, by
operation of law or otherwise, except in connection with a sale or conveyance of the Owner
Parcel. Any attempt to do so shall be null and void, and any assignee, sublessee, hypothecate
or transferee shall acquire no right or interest by reason of such attempted assignment,
hypothecation or transfer. Notwithstanding the foregoing, Bladium or any affiliate of Owner
may use the Temporary Easement in connection with Bladium's or such affiliate's operation of
its business on the Owner Parcel.
10. MAINTENANCE AND ALTERATIONS. During the Term of this Agreement, the
City shall maintain the Additional Land Area in its current condition and Owner shall maintain
the Seaplane North Property in its current condition. No material changes or alteration shall be
made to either the Additional Land Area or Seaplane North Property.
11. LIENS. Except as otherwise expressly set forth herein below, neither party shall
permit any mechanic liens or any other liens against the Temporary Easement Areas or any of
Owner's interests under this Agreement. Each party shall indemnify, hold harmless and defend
the other from any liens and encumbrances arising out of any work performed or materials
CITA15141 -Al 006979.8 3
furnished by or at the direction of said party. In the event that said party shall not, within ten
(10) days following the imposition of any such lien, cause such lien to be released of record by
payment or posting of a proper bond, the other party shall have, in addition to all other
remedies provided herein or by law, the right, but not the obligation, to cause the same to be
released by such means as it may deem proper, including payment of the claim giving rise to
such lien. All such sums paid and expenses reasonably incurred in connection therewith,
including attorneys' fees and costs, shall be payable by the other party on demand. This
Section 11 shall not prohibit Owner from recording against the Additional Land Area any deed
of trust in connection with any financing obtained by Owner.
12. NOTICES. All notices, demands, requests, consents, or approvals which may
or are required to be given by either party to the other shall be in writing and shall be deemed
given upon actual delivery (unless delivery occurs on a Sunday or holiday, in which case notice
will be deemed given on the next - succeeding business day) or refusal of delivery during normal
business hours when sent by United States Certified or Registered Mail, postage prepaid, or by
reputable overnight delivery service or personal delivery as follows:
12.1 If to City:
City Manager
City of Alameda
Alameda City Hall
2263 Santa Clara Avenue
Alameda, CA 94501 -4566
Telephone: (510) 747 -4700
12.2 If to Owner:
800 West Tower Avenue, LLC
c/o Bladium, Inc.
800 W. Tower Ave.
Alameda, CA 9501
Attn: Brad Shook
Telephone: (510) 814 -4999 ext. 104
12.3 Notwithstanding the addresses provided in subsections 12.1 and 12.2 of
this section, any party may from time to time designate an alternate and /or additional address
by notice.
13. CONDITION OF TEMPORARY EASEMENT AREAS. The Temporary
Easement Areas are delivered in "as is, where is," condition and configuration without any
representations or warranties, and subject to all matters of record and all applicable laws,
ordinances, rules and regulations.
14. ATTORNEYS' FEES. The prevailing party in any action or proceeding against
the other party by reason of a claimed default or otherwise arising out of a party's performance
or alleged non - performance under this Agreement, shall be entitled to recover from the other
party its costs and expenses of suit, including, but not limited to, reasonable attorneys' fees,
which fees shall be payable whether or not such action is prosecuted to judgment.
CITA \5141 Ti 006979.8 4
15. AUTHORITY. Each person who signs this Agreement on behalf of a party
represents and warrants that he or she has full and complete authority to execute this
Agreement and to thereby bind said party to the terms and conditions of this Agreement.
16. NO DEDICATION. Section 2 above notwithstanding, nothing herein contained
shall be deemed to be a gift or dedication of the Additional Land Area to the general public or for
the general public, it being the intention and understanding of the parties that this Agreement be
strictly limited to and for the purposes herein expressed and that any rights the afforded the
general public are by and through the authority of the City and shall terminate upon the
expiration or earlier termination of the Temporary Easement over the Additional Land Area
17. SEVERABILITY. If any provision of this Agreement or application thereof to any
person or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Agreement (including the application of such provision to persons or circumstances other than
those to which it is held invalid or unenforceable) shall not be affected thereby, and each
provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties with respect to the subject matter and, except as otherwise provided for in this
Agreement, may be terminated prior to its automatic expiration or amended only in a writing
signed by both parties.
19. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
this Agreement, and all of the easements, licenses, rights, duties, powers, covenants,
conditions, restrictions and obligations contained in this Agreement shall run with the Owner
Parcel and Temporary.Easement Areas and shall be binding upon the parties and their
respective heirs, successors (by merger, consolidation or otherwise), and assigns, and all other
persons or entities acquiring any interest in the Owner Parcel or the Temporary Easement
Areas, or portion thereof or interest therein, whether by operation of law or in any manner
whatsoever.
20. COUNTERPARTS. This Agreement and any amendments hereto may be
executed in counterparts, each of which is deemed an original and all of which, when taken
together constitute one and the same instrument.
IN WITNESS WHEREOF, the City and Owner have respectively signed and
sealed this Agreement as of the day and year first above written.
OWNER:
800 West Tower Avenue, LLC
a Delaware limited liability company
By
Name:
Title:
CITA\5141 Al 006979.8
CITY:
CITY OF ALAMEDA, a charter city and
municipal corporation
am
5
Jill Keimach
City Manager
Approved as to form:
M
CITA\51 41 7\1 006979.8
Janet Kern
City Attorney
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 San Francisco )
On , before me, , a Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
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 San Francisco
On , before me, , a Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
CITA\51417\1006979.8
EXHIBIT A
Parcel Map
CITA\51417\1006979.8
11L
Survey
CITA\51417\1006979.8
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
800 West Tower Avenue, LLC
c/o Bladium, Inc.
800 W. Tower Ave.
Alameda, CA 94501
Attention: Brad Shook
C IVRU IAO
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AGREEMENT REGARDING USE RESTRICTIONS
THIS AGREEMENT REGARDING USE RESTRICTIONS ( "Agreement ") is dated
as of _, 2017, by and between CITY OF ALAMEDA, a charter city and municipal
corporation ( "City"), and 800 WEST TOWER AVENUE, LLC, a Delaware limited liability
company ( "Owner").
RECITALS:
A. The City is the owner of certain improved real property located at 800
W. Tower Avenue as more particularly described and depicted on Exhibit A attached hereto
and made a part hereof (the "Parcel ").
B. Concurrently herewith, the City is conveying the Parcel to Owner in
accordance with the terms of that certain Purchase and Sale Agreement by and between the
City, as seller, and Bladium, Inc. ( "Bladium "), as buyer, with an effective date of ,
2017 (the "PSA" ), as assigned by Bladium to Owner. Owner's fee simple interest in the Parcel
is referred to herein as the "Benefitted Property".
C. Pursuant to the terms of the PSA, for good and valuable consideration,
the City has agreed and does impose upon that certain real property commonly known as
Alameda Point, as more particularly described in Exhibit B attached hereto and made a part
hereof (the "Burdened Property") certain use restrictions.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Maintenance Standards. As consideration for the granting of the Use
Restrictions (as defined below), Owner agrees to maintain, or cause to be maintained, the
Building and the Property (including any in -line hockey, arena soccer, fitness center and rock
climbing facilities, restrooms and commons use facilities, if any) in good condition and repair,
subject only to normal wear and tear. Such maintenance obligations also include the surface of
all parking areas and drive aisles, all surface and storm lateral drainage systems, sanitary sewer
lateral connections and exterior lighting fixtures (collectively, the "Maintenance Standards ").
Owner's compliance with the Maintenance Standards shall be judged by a comparative
standard with the custom and practice generally applicable to comparable high quality sports,
recreational and fitness facilities with comparable prices for similar services in Alameda and
Contra Costa Counties.
CITA \51417\1006979.8
2. Use Restrictions. The Burdened Property shall not be used for the
operation of a facility or business that includes any of the following activities: in -line hockey,
arena soccer, fitness center and /or rock climbing (collectively the "Use Restrictions").
3. Exceptions. The Use Restrictions shall not apply to: (i) a fitness center in
a hotel that is exclusively for the use of its guests; (ii) a fitness center in an apartment or
condominium building or complex that is exclusively for the use of its residents and guests; (iii) a
fitness center in premises owned or leased by a single company that is exclusively for the use of
such company's employees and guests, including residents of assisted living facilities and
employees of physical therapy facilities; (iv) a fitness center operated by a tenant not to exceed
2,000 usable square feet with respect to such tenant and its affiliates in a commercial building or
complex for a not to exceed cumulative amount of 6,000 square feet within said building or
complex with respect to all tenants that operate a fitness center; (v) public parks, including the
44 -acre sports and recreational complex to be constructed on the Public Benefit Conveyance
parcel of Alameda Point, whether operated by the City or a private party; or (vi) facilities owned
and operated by the City of Alameda or by public or nonprofit schools (excluding any
predominately sports training academies, sports camps or similar sports - oriented facilities); or
(vii) hospitals, assisted living facilities, physical therapy or other physical rehabilitation facilities,
owned or operated by other institutional governmental entities.
4. Restrictions Run with the Land. The Use Restrictions contained in this
Agreement shall run with the Burdened Property and shall inure to the benefit of the Benefitted
Property.
5. Breach. In the event of a breach or threatened breach of any of the
terms, covenants, restrictions or conditions hereof, the non - breaching party shall be entitled
forthwith to full and adequate relief by injunction and /or all such other available equitable
remedies from the consequences of such breach.
6. Term. All of the Use Restrictions imposed by, and the rights granted
Owner in this Agreement shall expire on the earlier of (a) the date Owner conveys, transfers, or
alienates (whether voluntarily or involuntarily) its fee simple interest in the Benefitted Property,
other than to a trustee under a deed of trust to secure a loan, except in the event of a
foreclosure which shall terminate such Use Restrictions, or (b) June 30, 2035. Upon the
request of the City, or any successor(s) in interest, Owner, or any successor in interest, shall
execute, in a recordable format, such instrument(s) as may reasonably be requested for
purposes of confirming the removal of the Use Restrictions from the Burdened Property, or any
part(s) or parcel(s) thereof.
7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the City and Owner.
8. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which, together, shall constitute one and the
same instrument.
CITA\51417\1006979.8 2
CITY: -
CITY OF ALAMEDA,
a charter city and municipal corporation
By:
Jill Keimach
City Manager
Approved as to Form
By:
Janet Kern
City Attorney
CITA\5141 -Al 006979.8 3
800 West Tower Avenue, LLC
a Delaware company
By:
Name:
Date:
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
On , before me, , a Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
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
On , before me, , a Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the same in his /her /their
authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
CITA\5141 Al 006979.8 4
EXHIBIT A
Description of Benefitted Property
CITA\51417\1006979.8
wCvql3:
Description of Burdened Property
CITA\51417\1 006979.8
EXHIBIT D
[CITY OFALAMEDA LETTERHEAD]
DATE: ,2017
800 West Tower LLC
c/o Bladium, Inc.
800 W. Tower Avenue
Alameda, CA 94501
Attn: Brad Shook
Re: Alameda Point Potable Water System Advisement and
Acknowledgement — Building 40
This letter is an important advisement regarding the Alameda Point Potable
Water System ("Water Supply System") and planned improvements. This letter
is delivered in anticipation of the purchase of 800 W. Tower Avenue, Building 40,
(the "Property") by 800 West Tower Avenue LLC ("Buyer")
Alameda Point's Water Supply System was designed, installed and operated by
the Navy. Water was supplied by East Bay Municipal Utility District ("EBMUD").
However, the Water Supply System at Alameda Point was neither built, nor
maintained to the standards of EBMUD. EBMUD does not own the Water Supply
System, and the Water Supply System does not meet EBMUD standards. By
purchasing property at Alameda Point, Buyer will not automatically become a
customer of EBMUD and until the Water Supply System is brought up to EBMUD
standards, Buyer cannot become an EBMUD customer, nor will Buyer have any
legal access to water from EBMUD. Until such time as the Water Supply System
is brought up to EBMUD standards, water will be provided by the City by means
of the City's current water supply system. Buyer will be charged and billed by the
City for its water usage at a rate no greater than the rate paid by the City to
EBMUD, and may bill Buyer at a lower rate.
The City of Alameda is committed to replacing the water infrastructure at
Alameda Point. To that end, the City has entered into that certain Ten-Year
Water Infrastructure Agreement Between East Bay Municipal Utility District and
City of Alameda Regarding Alameda Point (the "Water System Infrastructure
Agreement"), so that at a point in the future the Alameda Point Water Supply
System will meet all requirements set forth in EBMUD's Regulations Governing
Water Service and Buyer will be able to become a customer of EBMUD. These
requirements include the establishment of proper frontage on a District water
main, compliance with all water efficiency requirements, and payment of certain
fees. The City will be responsible for an amount not to exceed $526,000 for
CITA15141711 006979.8 2
System Capacity Charges ( "SCC ") and an amount not to exceed $124,000 for
Wastewater Capacity Fees ( "WCF ") assessed by EBMUD necessary for
establishing initial EBMUD water services to the Property at the time the SCC
and WCF are due to EBMUD. Buyer shall be responsible for the payment of any
other fees and costs which may be assessed by EBMUD, including any SCC or
WCF in excess of the above - referenced amounts.
Please indicate below, by signing and dating the original of this letter, that you
have read and understood the contents of this letter. Please retain a copy of this
letter for your files and return the signed and dated original to us.
Very truly yours,
City of Alameda, a municipal corporation
Jill Keimach
City Manager
* * * * * * * * **
I have read and understand the contents of the above letter concerning Alameda
Point's Potable Water System.
Its:
800 WEST TOWER AVENUE, LLC
a Delaware limited liability company
CITA\51417\1006979.8 3
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`a aks
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
800 West Tower Avenue, LLC
c/o Bladium, Inc.
800 W. Tower Ave.
Alameda, CA 94501
Attention: Brad Shook
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AGREEMENT REGARDING USE RESTRICTIONS
THIS AGREEMENT REGARDING USE RESTRICTIONS ("Agreement") is dated
as of —, 2017, by and between CITY OF ALAMEDA, a charter city and municipal
corporation ("City"), and 800 WEST TOWER AVENUE, LLC, a Delaware limited liability
company ("Owner").
RECITALS:
A. The City is the owner of certain improved real property located at 800
W. Tower Avenue as more particularly described and depicted on Exhibit A attached hereto
and made a part hereof (the "Parcel").
B. Concurrently herewith, the City is conveying the Parcel to Owner in
accordance with the terms of that certain Purchase and Sale Agreement by and between the
City, as seller, and Bladium, Inc. ("Bladium"), as buyer, with.an effective date of 1
2017 (the "PSX), as assigned by Bladium to Owner. Owner's fee simple interest in the Parcel
is referred to herein as the "Benefitted Property'.
C. Pursuant to the terms of the PSA, for good and valuable consideration,
the City has agreed and does impose upon that certain real property commonly known as
Alameda Point, as more particularly described in Exhibit B attached hereto and made a part
hereof (the "Burdened Property") certain use restrictions,
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Maintenance Standards. As consideration for the granting of the Use
Restrictions (as defined below), Owner agrees to maintain, or cause to be maintained, the
Building and the Property (including any in-line hockey, arena soccer, fitness center and rock
climbing facilities, restrooms and commons use facilities, if any) in good condition and repair,
subject only to normal wear and tear. Such maintenance obligations also include the surface of
all parking areas and drive aisles, all surface and storm lateral drainage systems, sanitary sewer
lateral connections and exterior lighting fixtures (collectively, the "Maintenance Standards").
Owner's compliance with the Maintenance Standards shall be judged by a comparative
standard with the custom and practice generally applicable to comparable high quality sports,
recreational and fitness facilities with comparable prices for similar services in Alameda and
Contra Costa Counties.
2. Use Restrictions. The Burdened Property shall not be used for the
operation of a facility or business that includes any of the following activities: in -line hockey,
arena soccer, fitness center and /or rock climbing (collectively the "Use Restrictions ").
3. Exceptions. The Use Restrictions shall not apply to: (i) a fitness center in
a hotel that is exclusively for the use of its guests; (ii) a fitness center in an apartment or
condominium building or complex that is exclusively for the use of its residents and guests; (iii) a
fitness center in premises owned or leased by a single company that is exclusively for the use of
such company's employees and guests, including residents of assisted living facilities and
employees of physical therapy facilities; (iv) a fitness center operated by a tenant not to exceed
2,000 usable square feet with respect to such tenant and its affiliates in a commercial building or
complex for a not to exceed cumulative amount of 6,000 square feet within said building or
complex with respect to all tenants that operate a fitness center; (v) public parks, including the
44 -acre sports and recreational complex to be constructed on the Public Benefit Conveyance
parcel of Alameda Point, whether operated by the City or a private party; or (vi) facilities owned
and operated by the City of Alameda or by public or nonprofit schools (excluding any
predominately sports training academies, sports camps or similar sports- oriented facilities); or
(vii) hospitals, assisted living facilities, physical therapy or other physical rehabilitation facilities,
owned or operated by other institutional governmental entities.
4. Restrictions Run with the Land. The Use Restrictions contained in this
Agreement shall run with the Burdened Property and shall inure to the benefit of the Benefitted
Property.
5. Breach. In the event of a breach or threatened breach of any of the
terms, covenants, restrictions or conditions hereof, the non - breaching party shall be entitled
forthwith to full and adequate relief by injunction and /or all such other available equitable
remedies from the consequences of such breach.
6. Term. All of the Use Restrictions imposed by, and the rights granted
Owner in this Agreement shall expire on the earlier of (a) the date Owner conveys, transfers, or
alienates (whether voluntarily or involuntarily) its fee simple interest in the Benefitted Property,
other than to a trustee under a deed of trust to secure a loan, except in the event of a
foreclosure which shall terminate such Use Restrictions, or (b) June 30, 2035. Upon the
request of the City, or any successor(s) in interest, Owner, or any successor in interest, shall
execute, in a recordable format, such instrument(s) as may reasonably be requested for
purposes of confirming the removal of the Use Restrictions from the Burdened Property, or any
part(s) or parcel(s) thereof.
7. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the City and Owner.
8. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which, together, shall constitute one and the
same instrument.
CITY:
CITY OF ALAMEDA,
a charter city and municipal corporation
Eel WT
800 West Tower Avenue, LLC
a Delaware company
By: By:
Jill Keimach Name:
City Manager
Date:
Approved as to Form
By:
Janet Kern
City Attorney
EXHIBIT A
Description of Benefitted Property
AUGUST 30, 2017
JOB NO.: 1087 -010
LEGAL DESCRIPTION
PARCEL A, PARCEL MAP 10600 { PM )
ALAMEDA, CALIFORNIA
REAL PROPERTY, SITUATE IN THE INCORPORATED TERRITORY OF THE CITY OF
ALAMEDA, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEING ALL OF PARCEL A, AS SAID PARCEL A IS SHOWN AND SO DESIGNATED ON
THAT CERTAIN PARCEL MAP 10600, FILED , IN BOOK
OF PARCEL MAPS, AT PAGE , IN THE OFFICE OF THE COUNTY
RECORDER OF ALAMEDA COUNTY.
a
W8164
END OF DESCRIPTION
SABRI KYLE PACK, P.L.S.
L.S. NO. 8164
P7 \1000 - 1099 \1007- 10 \LEGAL9 \LG -OG9- DLADZUN PM 10600 PARCEL A.DOC
EXHIBIT B
Description of Burdened Property
PORT OF OAKLAND i {
O'kLAND& ER 114R — — — — — — — — --
LEGEND
� I Si.4RGLLLA�I'"'–
t --- - - - ALAMEDA POINT
BURDENED PROPERTY =--
- - - - APPROXIMATE SHORELINE
)!EriORIALPARKWAY
(SHOREUNE) SEA FLANELAGOON
\ PACIFIC dENUE
ALAMEDA POINT
B PR.DPERTY
BURDENED
CrrY OF ALAT.IEDA ALAMEDA COUi@ il' CALIFORNIA
DATE: SEPTEMBER 20, 2017 SCALE• 1' =1,500'
Carlson, Barbee & Gibson, Inc,
SAN FR
1,500' 0' 750' 1,500' 3,000' 6,000'
G.1108T- 10tACAD- 101,EXHIBnM BURDENED PROPERTY.OIYO
EXHIBIT Q
[CITY OFALAMEDA LETTERHE4D]
DATE: 2017
800 West Tower LLC
c/o Bladium, Inc,
800 W. Tower Avenue
Alameda, CA 94501
Attn: Brad Shook
Re.* Alameda Point Potable Water System Advisement and
Acknowledgement — Building 40
Dear Brad:
This letter is an important advisement regarding the Alameda Point* Potable
Water System ( "Water Supply System") and planned improvements. This letter
is delivered in anticipation of the purchase of 800 W. Tower Avenue, Building 40,
(the "Property") by 800 West Tower Avenue LLC ( "Buyer")
Alameda Point's Water Supply System was designed, I installed and operated by
the Navy. Water was supplied by East Bay Municipal Utility District ("EBMUD").
However, the Water Supply Systern at Alameda Point was neither built, not
maintained to the standards of EBMUD. EBMUD does not own the Water Supply
System, and the Water Supply System does not meet EBMUD standards. By
purchasing property at Alameda Point, Buyer will not automatically become a
customer of EBMUD and until the Water Supply System is brought up to EBMUD
standards, Buyer cannot become an EBMUD customer, nor will Buyer have any
legal access to water from EBMUD. Until such time as the Water Supply System
is brought up to EBMUD standards, water will be provided by the City by means
of the City's current water supply system. Buyer Will be charged and billed by the
City for its water usage at b rate no .greater than the rate paid by the City to
EBMUD, and may bill Buyer at a lower rate.
The City of Alameda is committed to replacing the water infrastructure at
Alameda Point. To that end, the City has entered into that certain Ten-Year
Water Infrastructure Agreement Between East Bay, Municipal Utility District and
City of Alameda Regarding Alameda Point (the "Water System Infrastructure
Agreement'), so that at a point in the future the Alameda Point Water Supply
System will meet all requirements set forth in EBMUD's Regulations Governing
Water Service and Buyer will be able to become a customer of EBMUD. These
requirements include the establishment of proper frontage on a District water
main, compliance with all water efficiency requirements, and payment, of certain
fees. The City will be responsible for an amount not to exceed $526,000 for
CITAIS,141711006179.8 2
System Capacity Charges ("SCG") and an amount not to exceed $124,000 for
Wastewater Capacity Fees ('WCF') assessed by ESMUD necessary for
establishing initial EBMUD water services to the Property at the time the SCC
and WCF are due to, EBMUD_ Buyer shall be responsible for the payment of any
other fees and costs which may be assessed by EBMUD, including any SCC or
WCF in excess of the above-referenced amounts.
Please indicate below, by signing and dating the original of this letter, that you
have read and understood the contents of this letter. Please retain a copy of this
letter for your files and return the signed and dated original to us.
Very truly yours,
City of Alameda, a municipal corporation
By
Jill Keimach
City Manager
I have read and understand the contents of the above letter concerning Alameda
Point's Potable Water System.
800 WEST TOWER AVENUE, LLC
,a Delaware limited liability company
By:
DATE
Its:
CITM5141AM6979.8 $
I, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by the Council of the City of Alameda in a regular
meeting assembled on the 3rd day of October, 2017, by the following vote to wit:
AYES: Councilmembers Ezzy Ashcraft, Matarrese, Oddie, Vella and
Mayor Spencer — 5.
NOES: None.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official
seal of said City this 41h day of October, 2017.
' �"' L,,<'
Lara Weisiger, City Clerk
City of Alameda
APPROVED AS TO FORM:
Janet C. em, City Attorney
City of Alameda