Ordinance 3376 CITY OF ALAMEDA ORDINANCE NO. 3376
New Series
DECLARING SIX SUBMERGED PARCELS ON THE ALAMEDA SIDE
OF THE OAKLAND INNER HARBOR TIDAL CANAL ("TIDAL CANAL")
SURPLUS PROPERTY AND AUTHORIZING THE CITY MANAGER TO
EXECUTE PURCHASE AND SALE AGREEMENTS, DEEDS AND ALL
OTHER NECESSARY DOCUMENTS BETWEEN THE CITY OF
ALAMEDA AND VARIOUS PURCHASERS TO SELL 6 PARCELS ON
THE TIDAL CANAL AT FAIR MARKET VALUE
WHEREAS, on September 15, 2015, the City Council directed City staff to pursue
a real estate transaction whereby the U.S.Army Corps of Engineers("Army Corps")would
transfer, at no cost, the Alameda side of the Oakland Inner Harbor Tidal Canal ("Tidal
Canal") to the City and the City would then sell most of the parcels to adjacent private
property owners, maintaining ownership of the center open water parcel; and
WHEREAS, on December 6, 2016, the City Council approved a Final Map for Tract
8337 which subdivided the property into 99 individual parcels, but did not create parcels
adjacent to six residential properties on Fernside Boulevard on which were Public Access
Pathways; and
WHEREAS, on October 1, 2019, the City Council provided final approval of the
design concepts for the Public Access Pathways, and directed staff to create six
submerged parcels for the remaining six property owners on the estuary adjacent to the
public pathways at 3227, 3229, 3267, 3301, 3335, and 3341 Fernside Boulevard
("Submerged Parcels"); and
WHEREAS, on September 26, 2022, the Planning Board unanimously approved
Resolution PB-22-19 recommending City Council approve the proposed Tentative Map
to create seven new parcels - six as described above and one remainder parcel to be
retained by the City and finding that the location, purpose, and extent of the disposition
of the Submerged Parcels would be in conformity with the City's General Plan; and
WHEREAS, on October 18, 2022, the City Council approved Resolution No. 15985
approving the proposed Tentative Map for Tract 8570 to create seven new parcels; and
WHEREAS, on October 3, 2023, the City Council approved the Final Map for Tract
Map 8570, (Portion) Oakland Inner Harbor Tidal Canal containing the six Submerged
Parcels and one remainder parcel; and
WHEREAS, the City is authorized and empowered to enter into agreements for
the acquisition and disposition of real property in the City of Alameda; and
WHEREAS, Article XVI of the California Constitution prohibits the City from selling
property at a price which would constitute a gift of public funds; and
WHERERAS, before disposing of real property the City must comply with the
Surplus Land Act; and
WHEREAS, the City has obtained an appraisal report from Watts, Cohn and
Partners, Inc. a licensed appraisers who determined the fair market value of the
Submerged Parcels and the City intends to dispose of these parcels at or near the fair
market value after it has complied with the requirements of the Surplus Land Act; and
WHEREAS, on September 20, 2016, in accordance with the California
Environmental Quality Act (CEQA), the City adopted an Initial Study/Negative Declaration
("IS/ND") for the parcelization and acquisition of the Alameda side of the Oakland Inner
Harbor Tidal Canal which addressed all potential environmental impacts associated with
the proposed transfer and subsequent transfers into private ownership, amendments to
the Estuary District Zoning, and the proposed subdivision map application. The IS/ND
concludes that the proposed project would not cause any potentially significant
environmental impacts, and accordingly, no mitigation measures would be required as
part of the project. No further review is required pursuant to Public Resources Code
section 21166 and CEQA Guidelines Section 15162 because the environmental effects
of the project were considered and disclosed in the IS/ND and there have been no
changes to the project or the circumstances in which it is undertaken that would result in
new significant or substantially more severe environmental effects than was identified in
the previously adopted IS/ND. Any proposed future improvements along the Tidal Canal
will be subject to separate review and discretionary approval by the City.
NOW THEREFORE, BE IT ORDAINED by the City Council of the City of Alameda
("City Council") that after hearing all qualified and interested persons and receiving and
considering all relevant evidence, finds and determines as follows:
Section 1. The City Council hereby declares that the Submerged Properties are "surplus
land" and not necessary for the City uses, within in the meaning of the Surplus Land Act.
The subject submerged Lots 2 and 3 are located adjacent to 3227 and 3229 Fernside
Boulevard, respectively. The subject Lots 4 and 5 are situated adjacent to 3301 and 3267
Fernside Boulevard. These four Submerged Parcels have between 2,710 and 4,523
square feet. These four Submerged Parcels are partially affected by an easement for
public purposes : public, vehicular and emergency access and for a scenic/view corridor.
The 35-foot easement areas on Lots 2 and 3 (17.5 feet on each Parcel) and the 18-foot
easement areas on Lots 3 and 4 (nine feet on each Parcel) affect the northern and
southern portion of each Parcel. The subject Lots 6 and 7 are located adjacent to 3335
and 3341 Fernside Boulevard. These two Submerged Parcels are partially affected by a
scenic easement for a scenic/view corridor. The 10-foot easement areas (five feet on
each Parcel) affects the northern and south portion of each Parcel. The public
access/scenic view easements on Lots 2, 3, 4 and 5 range from 498 to 956 square feet.
The scenic view easements on Lots 6 and 7 are 504 square feet. The Submerged Parcels
are zoned E - Estuary District by the City of Alameda. The Submerged Parcels have
been improved with docks, piers and other improvements over the course of time by the
adjacent residential property owners. The City acquired the property from the Army Corps
to facilitate a transfer of the Submerged Parcels to private ownership and, if necessary
to allow the adjacent residential property owners to bring the existing docks and other
structures up to code. Given the location, submerged status, zoning, current use and
small size of the parcels, the City has determined it would be impractical to develop them
for City uses.
Section 2. The proposed sale does not include any proposed construction or
development. Future uses of the Submerged Parcels would be consistent with the
General Plan and the E, Estuary District zoning regulations, and would be restricted to
water-dependent uses, subject to future discretionary review and approval by the City.
SECTION 3. The City Manager is hereby directed to send a notice of availability of the
Submerged Parcels to the entities designated in Government Code Section 54222
("Designated Entities") by electronic mail or by certified mail.
SECTION 4. The City Council hereby delegates to the City Manager the authority to:
execute Purchase and Sale Agreements containing the price and terms for the City's sale
of individual parcels from the City to private purchasers at a price of $10,000 for each
Submerged Parcel, substantially in the form attached as Exhibit A; execute deeds
transferring the City's fee title interest in the Submerged Parcels, substantially in the form
attached as Exhibit B; and to execute auxiliary documents and to perform any and all acts
necessary or desirable to consummate the disposition of the City's fee title interest in the
Submerged Parcels to private purchasers at a price of $10,000 for each Submerged
Parcel..
Section 5. If any portion, section, subsection, paragraph, subparagraph, sentence,
clause, phrase or application of this Ordinance is held invalid or inapplicable by a final
judgment of a court of competent jurisdiction, such decision shall not affect the validity or
applicability of any other part of this Ordinance.
Section 6. This Ordinance shall be in full force and effect from and after the expiration of
thirty (30) days from the date of its final passage.
Presiding Of�fice'r of the Council
Attest:
Lara Weisiger, City Clerk
EXHIBIT A
TIDAL CANAL PARCEL
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
CITY OF ALAMEDA,
a charter city and municipal corporation
AS SELLER
and
XXX
AS BUYER
Residential Parcel: YY
4
TABLE OF CONTENTS
PAGE
1. THE TIDAL CANAL PARCEL 3
1.1 Property 3
1.2 Certain Improvements and Structural Encumbrances 4
2. PURCHASE PRICE 4
2.1 Deposit 4
2.2 Balance of Purchase Price 4
2.3 Independent Consideration 4
2.4 Obligations and Duties of Escrow Agent 5
3. BUYER'S INVESTIGATION OF PROPERTY CONDITIONS 5
3.1 Property Lines and Boundaries 5
3.2 Separate Parcels 5
3.3 Governmental Requirements, Fees and Permits 5
3.4 Water and Utilities 5
3.5 Environmental Hazards 6
3.6 Geologic/Seismic Conditions 6
3.7 Condition of Improvements 6
3.8 Zoning 6
4. RECEIPT OF DISCLOSURE DOCUMENTS 6
5. DUE DILIGENCE PERIOD 7
5.1 Access to Property 7
5.2 Additional Documents 7
5.3 Due Diligence Satisfaction 7
6. CONDITION OF THE PROPERTY 8
6.1 Property Sold in an"As Is" Condition and "With All Faults" 8
TABLE OF CONTENTS
(CONTINUED)
PAGE
6.2 Waiver of Environmental Conditions 8
6.3 Waiver of Natural Hazards 8
6.4 Dredging 9
6.5 Disclaimer and Release of Claims 9
6.6 Waiver of Unknown Claims 9
6.7 Waivers Bargained For 10
6.8 Title 10
6.9 Survival 10
7. CONDITIONS PRECEDENT TO CLOSING 10
7.1 Army Corps Conveyance 10
7.2 No Termination by Buyer during Due Diligence Period 10
7.3 Commitment for all Residential Appurtenant Parcels 10
7.4 No Pendency of Legal Challenge 11
7.5 Alameda City Council Approval 11
8. CLOSING 11
8.1 Seller Deposits into Escrow 11
8.2 Buyer Deposits into Escrow 11
8.3 Close of Escrow 12
8.4 Closing Costs 12
9. REPRESENTATIONS AND WARRANTIES 13
9.1 Seller's Representations and Warranties 13
9.2 Buyer's Representations and Warranties 13
10. DISPUTES TO BE RESOLVED BY JUDICIAL REFERENCE 14
11. GENERAL PROVISIONS 15
TABLE OF CONTENTS
(CONTINUED)
PAGE
11.1 Capacities 15
11.2 Binding on Successors 15
11.3 Entire Agreement 15
11.4 Attorney's Fees 15
11.5 Brokers' Commission 15
11.6 Governing Law 16
11.7 Captions 16
11.8 Time 16
11.9 Counterparts 16
11.10 Notices 16
11.11 Escrow Instructions 17
11.12 Construction 17
11.13 Possession 17
11.14 Non-Liability of Officials, Employees and Agents 17
11.15 Severability 17
INDEX OF EXHIBITS
Exhibits
A FINAL MAP
B FORM OF QUITCLAIM DEED
C DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (CC&Rs)
TIDAL CANAL PARCEL PURCHASE AND SALE AGREEMENT
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is entered into as of this
day of _ (the "Effective Date"), by and between the CITY OF ALAMEDA,
a charter city and municipal corporation("City" or"Seller"), and The Family ("Buyer"), whose
address is ,Alameda, CA 94501. Seller and Buyer are collectively referred to herein
as the "Parties". The Parties have entered into the Agreement with reference to the following
facts:
RECITALS
A. On October 20, 1884,the Superior Court of Alameda granted to the U.S.
Army Corps of Engineers, a federal agency acting under the U.S. Department of Defense (the
"Corps"), by judicial decree No. 3590, ownership of a strip of land connecting the cities of
Alameda and Oakland for purposes of dredging and excavating a tidal canal out of uplands,
which property became known as the Oakland Inner Harbor Tidal Canal (the "Tidal Canal").
B. Between approximately 1884 - 1905,the Corps excavated, dredged, and
created the Tidal Canal, which is a waterway approximately 1.8 miles long and 400 feet wide
and connects the Oakland Estuary with the San Leandro Bay. The Corps has retained ownership
of the Tidal Canal since its creation.
C. As a result of accretion and development over the past century, the outer
edge of the Tidal Canal on the Alameda side now includes uplands and bulkheads that have been
utilized to varying degrees by adjacent private property owners.
D. Over the past century,the Corps has issued various approvals and
authorizations to adjacent property owners to use portions of the Tidal Canal through real estate
licenses, leases and regulatory permits.
E. In 1990,the U.S. Congress authorized the Corps to transfer the Tidal
Canal to the City of Alameda through the Water Resources Development Act of 1990. The
Corps has been negotiating with the City of Alameda to transfer the Alameda side of the Tidal
Canal out of federal ownership.
F. Starting in 2000 and continuing until present day, the Corps instituted a
moratorium on issuing regulatory permits for any repairs, upgrades, improvements or new
construction within the Tidal Canal (the "Permitting Moratorium"). The Permitting
Moratorium has prevented necessary repairs and improvements to existing structures and docks
along the waterfront, which has negatively affected adjacent property owners and the City's code
enforcement program.
G. To lift the Permitting Moratorium and to remove the existing cloud on title
along the Tidal Canal, the City has agreed to accept ownership of the Alameda-side of the Tidal
Canal from the Corps, subject to certain conditions, with the intention of immediately
transferring portions of the property to the adjacent property owners at fair market value.
H. The Corps desires to transfer the Alameda-side of the Tidal Canal to the
City, and has agreed to take all steps necessary to effectuate the transfer, including filing a
tentative map application under the Subdivision Map Act(CA Gov. Code §§66410-66413.5)
prior to transfer to facilitate the subsequent transfer of portions of the property to the adjacent
property owners. The Tentative Map#8337 subdivides the Army Corps land into ninety-nine
(99) individual parcels. The Army Corps will retain five lots: the Oakland side of the Tidal
Canal (Unsurveyed Remainder Area 1), property adjacent to the federally owned Navy
Operational Support Center(Parcel 3) bridge footings for the High Street Bridge(Parcel 97), the
Miller-Sweeney Bridge and the Fruitvale Rail Bridge (Parcel 98), and the Park Street Bridge
(Parcel 99). The City will retain the open water on the Alameda side (Lots 2 and 96) (the "Open
Water Parcels"), which will be preserved for open navigation though the Tidal Canal. The City
will offer at fair market value the remaining 92 lots (Lots 4 through 96) consisting of eight(8)
commercial parcels (the "Commercial Appurtenant Parcels") and eighty-four(84) residential
parcels (the "Residential Appurtenant Parcels") to the adjacent property owners.
I. In 2016, the Corps completed the Environmental Assessment/Finding of
No Significant Impact to cover the federal transfer of the Tidal Canal in compliance with the
National Environmental Policy Act(42 U.S.C. 4321).
J. August 2016, the Corps completed a Finding of Suitability of Transfer,
which provides documentation that the Tidal Canal is environmentally suitable for transfer by
deed.
K. On October , 2016, the City entered into a Memorandum of
Understanding with the Corps ("MOA") with respect to the transfer of the Residential
Appurtenant Parcels from the Corps to the City and the subsequent and immediate transfer of
those parcels to the adjacent property owners. It is estimated that the Corps will convey the
Residential Appurtenant Parcels to the City on December 13, 2016 (the date upon which the
Residential Appurtenant Parcels are conveyed to the City by the Corps is referred to as the
"Army Corps Conveyance Date"). The Estimated Closing Date for this Agreement (as defined
at Section 8.3 below) is therefore December 13, 2016.
L. On July 11, 2016, the Planning Board of the City of Alameda
recommended that the City Council adopt a Final Negative Declaration, introduced as Ordinance
Amending Chapter 30 of the Alameda Municipal Code Section 3-4.21 E, Estuary District, and
approve Tentative Map #8337 (PLN16-0240) for a ninety-nine (99) lot subdivision located along
the Oakland Inner Harbor Tidal Canal from approximately one thousand eight hundred (1,800)
feet northwest of the Park Street Bridge to approximately two thousand three hundred (2,300)
feet south of High Street.
M. On or before the Army Corps Conveyance Date, the City caused to be
recorded in the Official Records of the County of Alameda, a final subdivision map creating,
inter alia, a single parcel designated as Parcel XX (the property which is the subject of this
Agreement), as shown on Exhibit A(the"Final Map") attached hereto and incorporated herein
by this reference.
N. The City has obtained an appraisal dated August, 2016 of the fair market
value of the Residential Appurtenant Parcels (appraised as unimproved land) from Sara Cohn,
MAI of Watts, Chon and Partners, Inc. (the "Appraisal").
O. On September 20, 2016, the City Council unanimously: (i) approved the
Negative Declaration for the project; (ii) approved and adopted the Tentative Subdivision Map;
(iii) amend the Estuary Zoning District; (iv) approved the transfer of fee title of the Residential
Appurtenant Parcels from the Army Corps to the City; (v) approved the sale of the Residential
Appurtenant Parcels from the City to various buyers at the fair market value; and (vi) authorized
the City Manager to execute all documents and to take such action as necessary and desirable to
consummate the transaction.
P. On October 4, 2016, the City Council approved the second reading of the
ordinances to: (i) amend the Estuary Zoning District; (ii) approved the transfer of fee title of the
Residential Appurtenant Parcels from the Army Corps to the City; (iii) approved the sale of the
Residential Appurtenant Parcels from the City to various buyers at the fair market value; and (iv)
authorized the City Manager to execute all documents and to take such action as necessary and
desirable to consummate the transaction.
Q. On November 15, 2016, the City Council approved and adopted the Final
Map.
R. The undersigned Buyer is the owner of that certain parcel of improved
property commonly known as Fernside Boulevard, Alameda, CA 94501 (the "Buyer's
Parcel")which is immediately adjacent to the Property (as defined in Section 1.1 below). To
facilitate the lifting of the Permitting Moratorium, to lift the existing cloud on title to existing
structures and docks on or about the Property and to provide Buyer with direct access from the
Residential Parcel to the water frontage, it is the intent of the Parties hereto that Buyer purchase
and the City sell the Property upon the terms and conditions set forth herein.
NOW THEREFORE for good and valuable consideration, including the mutual
covenants and promises of the parties, the Parties hereto agree as follows:
1. THE TIDAL CANAL PARCEL. Seller hereby agrees to sell, assign and
convey to Buyer, and Buyer hereby agrees to purchase from Seller, all of Seller's right, title and
interest in and to the following, upon all of the terms, covenants and conditions set forth in this
Agreement.
1.1 Property. The property that is the subject of this transaction
includes all of the following (subject to the exceptions, limitations and disclaimers listed in
Section 1.2 below): (a)that certain real property located in the City of Alameda, County of
Alameda, known as Parcel XX, as shown on the Final Map attached hereto as Exhibit A; (b) all
rights, privileges, easements and appurtenances thereto; (c) the improvements located thereon, if
any; (d) all of Seller's right, title and interest in and to any and all mineral and water rights,
easements, rights-of-way and other appurtenances used or connected with the beneficial use or
enjoyment thereof; and(e) all of Seller's interests in any assignable permits, licenses,
certificates, authorizations, variances, waivers and approvals, if any, relating to the property so
conveyed (collectively hereinafter referred to as the "Property").
1.2 Certain Improvements and Structural Encumbrances. Seller makes
no representations or warranties with regard to any improvements on the Property, either with
regard to their physical condition or compliance with government requirements. In addition,
Buyer hereby acknowledges that the Property may contain docks, boat houses and other
improvements or structural encumbrances for which parties other than Seller may claim
ownership interest. Said improvements or structural encumbrances may already be owned by
Buyer. It is expressly agreed by the Parties that the Seller shall have no obligation to remove
these improvements and/or structural encumbrances prior to the Closing Date or at any time
thereafter. Buyer hereby expressly acknowledges that Buyer is fully aware of the improvements
and/or structural encumbrances on the Property, if any, whether owned by Buyer or third parties.
Buyer hereby expressly agrees to enter into this transaction, execute this Agreement and accept
title to the Property in exchange for the Purchase Price, despite the presence of the improvements
and/or structural encumbrances, if any, even if said improvements and/or structural
encumbrances are owned by parties other than Buyer or Seller. Buyer is also directed to Article
3 below as to Buyer's duty of inspection and due diligence.
2. PURCHASE PRICE. The Purchase Price for the Property is Ten
Thousand and 00/100 Dollars ($10,000.00) together with closing costs (the "Purchase Price")
which is the fair market value of the Property, as determined by the Appraisal on a per parcel
basis, plus the closing costs as determined by the Escrow Agent. The Purchase Price shall be
paid by Buyer as follows:
2.1 Deposit. Within ten(10) business days of the Effective Date of
this Agreement, Buyer shall deliver to Chicago Title Company, 675 N. First Street, Suite 900,
San Jose, CA 95112; Attn: Ms. Christina Molotla("Title Company" and "Escrow Agent") an
initial earnest money deposit in the amount of Five Hundred and 00/100 Dollars ($500.00) (the
"Deposit"). The Deposit paid by Buyer pursuant to the terms hereof shall be held by Escrow
Agent, in an interest bearing account insured by the federal government. In the event the
purchase and sale of the Property is consummated as contemplated hereunder, the Deposit shall
be credited against the Purchase Price Balance at Closing. A copy of this Agreement, duly
executed by both Parties which may be signed in counterparts, shall also be deposited with
Escrow Agent promptly after execution.
2.2 Balance of Purchase Price. No later than November 14, 2016,
Buyer shall deposit with Escrow Agent additional cash by wire transfer of immediately available
funds in the amount of Nine Thousand Five Hundred and 00/100 Dollars ($9,500.00) together
with One Thousand and 00/100 Dollars ($1,000) the estimated closing costs ("Purchase Price
Balance"). The Seller and Buyer agree that the Seller shall pay for normal closing costs in
excess of$1,000 as further described in Section 8.4.
2.3 Independent Consideration. The Deposit being delivered by Buyer
includes the amount of One Hundred and No/100 Dollars ($100.00) as independent consideration
for Seller's performance under this Agreement ("Independent Consideration"), which shall be
retained by Seller and, except as otherwise specified herein, shall be nonrefundable to Buyer. If
the Closing occurs, the Independent Consideration shall be applied to the Purchase Price Balance
at Closing. The Independent Consideration has been bargained for as consideration for Seller's
execution and delivery of this Agreement and for Buyer's review, inspection and termination
rights during the Due Diligence Period, and such consideration is adequate for all purposes under
any applicable law or judicial decision.
2.4 Obligations and Duties of Escrow Agent.
(a) The duties and obligations of the Escrow Agent are only as
herein specifically provided, and are purely ministerial in nature. The Escrow Agent shall incur
no liability for any error in judgment, for any act done or step taken or omitted to be taken by it
in good faith, for any mistake of fact or law or for any reason whatsoever except for its own
willful misconduct or failure to follow an escrow instruction signed by both Seller and Buyer.
(b) In the event that Seller and Buyer cannot agree on the
disbursement of the Deposit,the Escrow Agent may place the Deposit with a court of competent
jurisdiction and request that the court resolve the dispute.
3. BUYER'S INVESTIGATION OF PROPERTY CONDITIONS. Buyer is
aware of Buyer's affirmative duty to exercise reasonable care in the acquisition of real property,
including but not limited to investigating (with the advice and assistance of an attorney or other
professionals as appropriate)the facts that are known to or within the diligent attention and
observation of the Buyer including, but not limited to, with respect to the following:
3.1 Property Lines and Boundaries. Fences, hedges, walls, and other
natural or constructed barriers or markers do not necessarily identify true Property boundaries.
Property lines are verifiable only by survey.
3.2 Separate Parcels. Upon conveyance of the Property to Buyer, the
Property and the Buyer's Parcel will remain two separate parcels which may be merged into one
parcel only in in compliance with the Subdivision Map Act(California Government Code
Section 66410-66413.5), and at Buyer's sole cost and expense. If Buyer chooses to merge the
Property and Buyer's Parcel, such merger must occur after the Closing Date.
3.3 Governmental Requirements. Fees and Permits. The need for
governmental permits, inspections, certificates, or other determinations affecting the Property
and any improvements located thereon; limitations, restrictions, and requirements affecting the
use of the Property; future development, zoning, building, size, governmental permits, and
inspections; and application, processing, inspection, and in-lieu fees and expenses associated
therewith. Buyer should investigate the need for regulatory permits for new and existing
structures. Any such uses or permits may be governed by the Rivers and Harbors Appropriation
Act of 1899 (33 U.S.C. 403) and the Federal Water Pollution Control Act (Clean Water Act) (33
U.S.C. 1251 - 1376).
3.4 Water and Utilities. Water and utility availability and use
restrictions; hook-up fees, facility fees, and other costs and expenses associated with the
provision of utilities to the Property.
3.5 Environmental Hazards. Potential environmental hazards
contaminated soil or water, hazardous waste, waste disposal sites, electromagnetic fields, and
other substances, materials, products, or conditions.
3.6 Geologic/Seismic Conditions. Geologic/seismic conditions, soil
and terrain stability, suitability, and drainage. Some parts of the East Bay have expansive, or
adobe, soil which will expand and contract with the wet and dry seasons. This expansion and
contraction can cause movement or shifting of structures. Like all regions in the Bay Area, the
Property is considered to be subject to high seismic activity. Local moderate seismic activity
association with any area faults could produce severe ground shaking.
3.7 Condition of Improvements. The physical condition of any docks,
piers or other improvements, the issue of whether such improvements possess necessary permits
or authorizations and whether such improvements are located exclusively upon the Property.
3.8 Zoning. Any use or development of the Property must be in
conformity with its zoning designation, E, Estuary District, as defined at Section 30-4.21 of the
Alameda Municipal Code of Ordinances.
4. RECEIPT OF DISCLOSURE DOCUMENTS. Buyer is hereby advised to
thoroughly review all reports and disclosures related to the Property referenced herein or
otherwise provided to Buyer(with the advice and assistance of a lawyer or other professionals as
appropriate). The following documents in Seller's possession related to the Property (the
"Property Information") are delivered to Buyer(via the City's website at the following link:
https://alamedaca.t;ov/tidal-canal-project or, at Buyer's request, hard copies or electronic
copies will be delivered to Buyer) concurrently herewith:
(a) Final Map;
(b) Memorandum of Understanding between the City and the
Corps;
(c) 2016 Environmental Assessment/Finding of No Significant
Impact to cover the federal transfer of the Tidal Canal in compliance with the National
Environmental Policy Act;
(d) August 2016 Finding of Suitability of Transfer;
(e) June 2014 Environmental Assessment Oakland Inner
Harbor Tidal Canal Surplus Property Divestiture (Environmental Baseline Survey);
(f) May 12, 2015 Summary Report on Oakland Inner Harbor
Tidal Canal Environmental Contamination Issues prepared by Russell Resources, Inc.;
(g) Mitigated Negative Declaration Determination;
(h) Declaration of Covenant, Conditions and Restrictions;
(i) Appraisal report from Watts, Cohn and Partners, dated
August 2016 showing the aggregate fair market value of the Residential Appurtenant Parcels and
the Property on a per parcel basis.
a) Quitclaim Deed between the Army Corps and the City
Seller will provide to Buyer, without charge, a hard copy or pdf of any of the above documents
upon written request.
BUYER HEREBY ACKNOWLEDGES RECEIPT OF ALL OF THE ABOVE-
REFERENCED DOCUMENTS
Buyer's Initials: / /
5. DUE DILIGENCE PERIOD. As used in this Agreement, the term"Due
Diligence Period" shall mean the period commencing on the date Buyer executes this
Agreement and ending at 5:00 p.m. on November 14, 2016. During said Due Diligence Period,
Buyer is encouraged to undertake such investigations of property conditions, to review
documents and undertake such other investigations as it deems prudent.
5.1 Access to Property. Buyer acknowledges that, prior to the Army
Corps Conveyance Date, Seller neither possesses nor controls the Property, the same remaining
under the ownership of the Corps. Thus Seller will not have title to, nor possession of any of the
Property and therefore has no authority to grant Buyer access to conduct environmental,
geotechnical or other tests on the land. The foregoing notwithstanding, Buyer acknowledges that
Buyer has direct access and/or actual use and possession of the Property with the actual or
implied consent of the Corps. Thus Buyer hereby acknowledges that Buyer has sufficient access
to the Property to conduct its due diligence during the Due Diligence Period.
5.2 Additional Documents. Seller agrees that any additional
documents relating to the Property, beyond those identified in Article 4 above, which come into
the possession, custody or control of Seller after the Effective Date but before the Closing Date
will be promptly delivered by Seller to Buyer via the City's website at the link as identified at
Section 4 above or, at Buyer's request, by hard or electronic copies delivered to Buyer.
5.3 Due Diligence Satisfaction. Buyer may, at any time prior to 5:00
p.m. on November 14,2016 (the"Due Diligence Satisfaction Date"), elect to proceed with the
purchase of the Property or terminate this Agreement in its sole and absolute discretion for any
reason or no reason, by sending to Seller written notice indicating Buyer's election to terminate
the Agreement. In the event of such termination, the Deposit(exclusive of the Independent
Consideration)then held by Escrow Agent shall be returned to Buyer. If Buyer fails to deliver
such notice prior to 5:00 p.m. on November 14, 2016 in accordance with the provisions of this
Section 5.3, then Buyer shall be deemed to have waived its right to terminate this Agreement
pursuant to this Section 5.3. If Buyer so terminates this Agreement, Seller may thereafter offer
the Property to a third party purchaser.
6. CONDITION OF THE PROPERTY.
6.1 Property Sold in an"As Is" Condition and "With All Faults".
Except for the representations or warranties of Seller expressly set forth in this Agreement,
Buyer and Seller mutually acknowledge and agree that, the Property is being sold in an "AS IS"
condition and "WITH ALL FAULTS," known or unknown, contingent or existing. Buyer has
the sole responsibility to fully inspect the Property, to investigate all matters relevant thereto,
including, without limitation, the condition of the Property and to reach its own, independent
evaluation of any risks (environmental or otherwise) or rewards associated with the ownership of
the Property. Effective as of the Closing, Buyer hereby waives and releases the City, its City
Council, boards, commissions, officials, and its employees, agents, successors and assigns from
and against any and all claims, obligations and liabilities arising out of or in connection with the
physical condition of the Property.
6.2 Waiver of Environmental Conditions. To the fullest extent
permitted by law, and except as expressly set forth in this Agreement, Buyer does hereby
unconditionally waive and release the City, its City Council, boards, commissions, officials, and
its employees, agents, successors and assigns from any present or future claims and liabilities of
any nature arising from or relating to the presence or alleged presence of Hazardous Substances
in, on, at, from, under or about the Property or any adjacent property, including, without
limitation, any claims under or on account of any environmental law, regardless of whether such
Hazardous Substances are located in, on, at, from, under or about the Property or any adjacent
property prior to or after the Closing. In addition, Buyer does hereby covenant and agree to
defend, indemnify, and hold harmless Seller, its City Council, boards, commissioners, officials
and its employees, agents, successors and assigns from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs or expenses, known or unknown, existing
in future, to the extent relating to any Hazardous Substances that are placed, located or released
on the Property after the Closing and, with respect to releases, that did not exist on the Property
prior to the Closing, including any action or proceeding brought or threatened or ordered by
governmental authorities. For purposes of this Agreement, "Hazardous Substances"means any
flammable explosives, radioactive materials, hazardous wastes, petroleum and petroleum
products and additives thereof, toxic substance or related materials, including without limitation,
any substances defined as or included within the definition of"hazardous substances,"
"hazardous wastes," "hazardous materials," or"toxic substances"under any applicable federal,
state or local laws, ordinances or regulations.
6.3 Waiver of Natural Hazards. Buyer further acknowledges that
"Natural Hazards" described in the following California Code Sections (the "Natural Hazard
Laws") may affect the Property: Government Code Sections 8589.4; 8589.3; Government Code
Sections 51183.4, 51183.5 (Fire Hazard Severity Zone); Public Resource Code Section 2621.9
(Earthquake Fault Zone); Public Resource Code Section 2694 (Seismic Hazard Zone); and
Public Resource Code Section 4136 (Wildlands Area). Buyer acknowledges and agrees that
Buyer has had the opportunity independently to evaluate and investigate whether any or all of
such Natural Hazards effect the Property and Seller shall have no liabilities or obligations with
respect thereto. Buyer further acknowledges that pursuant to California Civil Code section
1103.1, this transfer is exempt from the natural hazard disclosure requirements set forth in
sections 1103 et. seq. Without limiting the foregoing, Buyer acknowledges and agrees that
Buyer knowingly and intentionally waives and releases Seller from any disclosures, obligations
or requirements of Seller with respect to Natural Hazards, including,without limitation, any
disclosure obligations or requirements under the aforementioned Code Sections or under
California Civil Code Section 1102.
6.4 Dredging. Buyer shall be solely responsible for any dredging that
may be necessary or desirable for Buyer's use of the Property.
(a) Dredging by the Corps for Operations and Maintenance. The
Corps reserves a superior right of access to, over, across and through any and all portions of the
Open Water Parcels, Commercial Appurtenant Parcels and Residential Appurtenant Parcels for
its operations and maintenance of the Tidal Canal, as authorized by the River and Harbors Act of
1922, Pub. L. No. 67-362, as amended. These rights shall be exercisable in any case in which
the Corps is authorized to dredge or clear the Tidal Canal. Pursuant to this reservation, the Corps
and its officers, agents, employees, contractors, and subcontractors shall have the right to enter
upon the Property to, including but not limited to, conduct investigations, conduct surveys,
dredge, and/or clear the Tidal Canal of any obstructions or potential obstructions to navigation.
In exercising its right of access, the Corps shall provide the Buyer or its successors or assigns, as
the case may be, with reasonable notice of its intent to enter upon the Property and exercise its
rights under this clause, which notice may be severely curtailed or even eliminated in emergency
situations. This reservation of rights runs with the land and is contained in the Quitclaim Deed
which conveys the Property from Seller to Buyer.
6.5 Disclaimer and Release of Claims. The Purchase Price reflects
that the Property is being purchased by Buyer on an"As-Is," "Where Is" and "With All Faults"
basis. Buyer hereby waives and relinquishes all rights and privileges arising out of, or with
respect to, any representations, warranties or covenants, whether express or implied,which may
have been made or given, or which may be deemed to have been made or given, by Seller or its
representatives, except for those representations, warranties and covenants set forth in this
Agreement. Buyer has not relied upon and will not rely upon, and Seller expressly disclaims,
any representations or warranties with respect to: (a) the presence of any Hazardous Substances
in, on, at, from, under or about the Property or any adjacent property prior to or after the Closing;
or(b)the matters referenced in Sections 3.1 through 3.8 above (the "Buyer's Release Claims").
6.6 Waiver of Unknown Claims. Buyer hereby acknowledges that
Buyer is familiar with and understands the meaning of California Civil Code Section 1542 which
provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE WHICH IF KNOWN BY HIM OR
HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
Buyer waives and relinquishes any right or benefit which Buyer has or may have under Section
1542 of the California Civil Code to the fullest extent that it may lawfully waive such rights and
benefits. In connection with such waiver and relinquishment, Buyer acknowledges that it is
aware that it or its consultants may hereinafter discover facts in addition to or different from
those which it now knows or believes to exist with respect to the subject matter of this
Agreement, but that it is Buyer's intention hereby to fully, finally and forever settle and release
all of Buyer's Released Claims, known or unknown, suspected or unsuspected, which now exist
or may exist hereafter between Buyer and Seller with regard thereto.
6.7 Waivers Bargained For. Buyer acknowledges and represents that
the waivers set forth in this Article 6 have been negotiated and each is an essential aspect of the
bargain between the parties.
6.8 Title. Upon and subject to Close of Escrow, Seller shall convey
title to the Property to Buyer by quitclaim deed in the form of Exhibit B, subject to the
Covenants, Conditions and Restrictions attached as Exhibit C and further subject to any
exceptions or restrictions to which the Property is subject upon its conveyance from the Corps to
the City.
6.9 Survival. The terms and provisions of this Article 6 shall survive
the Closing hereunder until expiration of any applicable statute of limitations.
7. CONDITIONS PRECEDENT TO CLOSING. The obligations of Buyer
to purchase and Seller to sell the Property are expressly conditioned upon the satisfaction, prior
to said closing, of each of the conditions precedent set forth in this Article 7 (the "Conditions
Precedent"), any of which conditions may be waived by the Party to whose benefit such
condition inures. If this Agreement is deemed terminated as a result of the failure or non-
occurrence of a Condition Precedent,the Deposit (including the Independent Consideration
except as otherwise set forth in Sections 5.3 and 7.2) then held in Escrow shall be returned to
Buyer.
7.1 Army Corps Conveyance. The conveyance by the Corps of the
Open Water Parcels, Commercial Appurtenant Parcels and Residential Appurtenant Parcels shall
have occurred in accordance with the terms and conditions of the MOA and Recital K above. If
the Army Corps Conveyance Date has not occurred by January 13, 2017, then this Agreement
shall be deemed terminated.
7.2 No Termination by Buyer during Due Diligence Period. Buyer
shall not have timely exercised the right to terminate this Agreement before the Due Diligence
Satisfaction Date in accordance with Section 5.3. If Buyer terminates in accordance with
Section 5.3, the Deposit(less the Independent Consideration) shall be returned to Buyer.
7.3 Commitment for all Residential Appurtenant Parcels. The
obligation of the Corps to convey the Residential Appurtenant Parcels to the City, and the City's
obligation to convey the Property to Buyer are conditioned upon there being buyers for one
hundred percent (100%) of the Residential Appurtenant Parcels. For purposes of satisfying this
Condition Precedent, the buyer need not be the owner of the adjacent residential parcel. All
Residential Appurtenant Parcels must be under contract and the purchase price (including closing
costs) and documents required to be deposited into escrow shall have all been deposited on or
before the Closing Date.
7.4 No Pendency of Legal Challenge. There shall be no pending legal
action challenging the conveyance of the Open Water Parcels, Commercial Appurtenant Parcels
and Residential Appurtenant Parcels, or any of them, from the Corps to the City, or challenging
the reconveyance by the City of said parcels, or any of them, or challenging the validity of this
Agreement or any action to be taken by Seller or Buyer pursuant thereto.
7.5 Alameda City Council Approval. The Alameda City Council in its
sole and absolute discretion shall approve by at least four(4) affirmative votes to acquire the
Open Water Parcels, Commercial Appurtenant Parcels and Residential Appurtenant Parcels and
shall have directed the City Manager to execute any and all documents to consummate the
transaction upon terms and conditions the City Council deems appropriate.
8. CLOSING.
8.1 Seller Deposits into Escrow. Seller shall deposit the following into
Escrow:
(a) Quitclaim deed. A duly executed and acknowledged
quitclaim deed conveying the Property to Buyer;
(b) Certificate of Non-Foreign Status. A Non-Foreign
Certificate executed by the City (the "FIRPTA Certificate") and a California Form 593-C
executed by the City (the "Cal-FIRPTA Certificate");
(c) Escrow instructions. Written escrow instructions to Escrow
Agent instructing the Escrow Holder to close escrow in accordance with the terms of this
Agreement.
(d) Other Documents. Such other documents and instruments
as may be required by the provisions of this Agreement or may be reasonably required by
Escrow Agent or otherwise to carry out the terms and intent of this Agreement.
8.2 Buyer Deposits into Escrow. Buyer shall deposit the following
into Escrow:
(a) Balance of Purchase Price. Cash or immediately available
funds in the amount of the Purchase Price Balance and estimated closing costs by no later than
November 14, 2016;
(b) Escrow Instructions. Written escrow instructions to
Escrow Holder instructing the Escrow Holder to close escrow in accordance with the terms of
this Agreement;
(c) Other Documents. Such other documents and instruments
as may be required by any other provision of this Agreement or as may be reasonably required
by Escrow Agent or otherwise to carry out the terms and intent of this Agreement.
8.3 Close of Escrow.
(a) Closing Date. The Escrow shall close upon the same date
as the Army Corps Conveyance Date (which is anticipated to be December 13, 2016) and
immediately following such conveyance of the Open Water Parcels, Commercial Appurtenant
Parcels and Residential Appurtenant Parcels from the Corps to the City (the "Closing Date").
For purposes of satisfying (or causing to be satisfied) a Condition Precedent, Seller may, at its
sole and absolute discretion, elect to continue the Closing Date for a period of not to exceed
thirty (30) days by giving written notice of the same to Escrow Holder and Buyer.
(b) Closing of Escrow. When the contingencies listed in
Section 7.1 have been satisfied or waived in writing by Buyer and Seller and Escrow Agent has
received all necessary cash and documents, Escrow Agent shall immediately close Escrow as
provided below (the "Closing"). The Parties to this Agreement shall cooperate with each other
and the Escrow Agent in preparing and executing such further documents (including further
escrow instructions) as may be reasonably necessary to close Escrow as contemplated by this
Agreement.
(c) Procedure. Escrow Agent shall close Escrow as follows:
(i) Record quitclaim deed. Record quitclaim deed
conveying the Property to Buyer;
(ii) Issue title policy. Issue and deliver to Buyer a
CLTA owner's policy of title insurance in the amount of the Purchase Price showing title to the
Property vested of record of the Closing Date with Buyer;
(iii) Pay to Seller. Pay to Seller the funds in Escrow
equal to the Purchase Price, reduced by the closing costs to be paid by Seller as hereinafter set
forth;
(iv) Closing statement. Prepare and deliver to Buyer
and Seller one (1) signed copy of Escrow Agent's closing statement showing all receipts and
disbursements from the Escrow.
8.4 Closing Costs. Buyer shall pay all City and County documentary
transfer taxes due on the transfer of the Property from Seller to Buyer, all premium costs and
expenses incurred in connection with the issuance of a CLTA owner's policy of title insurance,
together with all escrow fees. The foregoing notwithstanding, the Seller and Buyer agree that
Seller shall pay normal closing costs in excess of One Thousand and 00/100 Dollars ($1,000).
However, any extraordinary closing costs such as additional insurance endorsements, title
insurance coverage in excess of the Purchase Price or additional services requested by Buyer
shall be paid by Buyer.
(a) Each Party shall bear the expense of its own legal counsel.
Attorneys' fees and expert consultant fees are not to be considered as normal closing costs and
shall be excluded when calculating the share of Closing Costs under Section 8.4 above.
9. REPRESENTATIONS AND WARRANTIES.
9.1 Seller's Representations and Warranties. Seller represents and
warrants to Buyer that the following matters are true and correct in all material respects as of the
execution of this Agreement and will also be true and correct in all material respects as of the
Closing:
(a) Due Authority. Seller has obtained approval of the
Alameda City Council authorizing the City Manager to execute this Agreement on its behalf.
(b) Litigation. Seller has received no written notice of any
pending action or proceeding which challenges the validity of this Agreement or any action taken
or to be taken by Seller pursuant hereto.
9.2 Buyer's Representations and Warranties. Buyer represents and
warrants to Seller that the foregoing matters are true and correct in all material respects as of the
execution of this Agreement, and will also be true and correct in all material respects as of the
Closing.
(a) Organization. Authorization and Consents. Buyer: (i) is a
natural person(s) or is duly organized, validly existing and in good standing under the laws of the
state of its formation; (ii) is and shall remain in good standing and qualified to do business in the
state of California; (iii) has the full power and authority to execute and deliver this Agreement
and all documents now or hereafter to be executed and delivered by it pursuant to this Agreement
(the "Buyer's Documents"); and (iv) is lawfully able to perform all obligations arising under
this Agreement and under the Buyer's Documents, and such performance does not conflict with
any obligations of Buyer. The individual(s) executing this Agreement and the instruments
referenced herein on behalf of Buyer have the legal power,right and actual authority to bind
Buyer to the terms and conditions hereof and thereof.
(b) Authorization of Buyer. Buyer has taken all necessary
action to authorize the execution, deliver and performance of this Agreement, and upon the
execution and delivery of documents to be delivered by Buyer on or prior to the Closing,this
Agreement and such documents shall constitute the valid and binding obligation and agreement
of Buyer, enforceable against Buyer in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization,moratorium or similar laws of general
application affecting the rights and remedies of creditors.
(c) Buyer not an Employee Benefit Plan. Buyer is not an
employee benefit plan(a"Plan") subject to the Employee Retirement Income Security Act of
1974, as amended "ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"),nor a person or entity acting, directly or indirectly, on behalf of any Plan
or using the assets of any Plan to acquire the Property, Buyer is not a"party in interest" (as that
term is defined in Section 3(14)) of ERISA with respect to any Plan that is an investor in Seller,
and Buyer's acquisition of the Property will not constitute or result in a prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code.
(d) No Violation of Agreements. Neither the execution,
delivery or performance of this Agreement by Buyer, nor compliance with the terms and
provisions hereof, will result in the breach of any terms, conditions or provisions of, or conflict
with or constitute a default under the terms of any indenture, deed to secure debt, mortgage, deed
of trust, note, evidence of indebtedness or any other agreement or instrument by which Buyer is
bound.
(e) Liti<aation. Buyer has no knowledge of any pending action
or proceeding which challenges the validity of the Agreement or any action taken or to be taken
by Buyer pursuant hereto.
10. DISPUTES TO BE RESOLVED BY JUDICIAL REFERENCE.
(a) Any action, proceeding or counterclaim brought by either
Party hereto against the other on any matters arising out of or connected with this Agreement
shall be heard and resolved by a referee under the provisions of the California Code of Civil
Procedure, Sections 638 —645.1, inclusive (as same may be amended, or any successor
statute(s) thereto) (the "Referee Sections"). Each Party herby acknowledges that in agreeing to
resolve any disputes arising hereunder by means of a judicial reference in accordance with the
Referee Sections constitutes a waiver of the right to a trial by jury.
(b) Within ten (10) days of receipt by any Party of a written
request to resolve any dispute or controversy pursuant to this Article 10, the Parties shall agree
upon a single referee who shall try all issues, whether of fact or law, and report a finding and
judgment on such issues as required by the Referee Sections. If the Parties are unable to agree
upon a referee within such ten (10) day period, then any party may thereafter file a lawsuit in
Alameda County Superior Court the purpose of appointment of a referee under the Referee
Sections. If the referee is appointed by the court, the referee shall be a neutral and impartial
retired judge with substantial experience in the relevant matters to be determined, from
Jams/Endispute, Inc., ADR Services, Inc., the American Arbitration Association or similar
mediation/arbitration entity. The proposed referee may be challenged by any party for any of the
grounds listed in the Referee Sections.
(c) The referee shall have the power to decide all issues of fact
and law and report his or her decision on such issues, and to issue all recognized remedies
available at Law or in equity for any cause of action that is before the referee, including an award
of attorneys' fees and costs in accordance with this Agreement. The Parties shall be entitled to
conduct all discovery as provided in the California Code of Civil Procedure, and the referee shall
oversee discovery and may enforce all discovery orders in the same manner as any trial court
judge, with rights to regulate discovery and to issue and enforce subpoenas, protective orders and
other limitations on discovery available under California law. The Parties agree that the Parties
and the referee shall use best efforts to ensure that (i) discovery be conducted for a period no
longer than six (6) months from the date the referee is appointed, excluding motions regarding
discovery, and (ii) a trial date be set within nine (9)months of the date the referee is appointed.
(d) In accordance with Section 644 of the California Code of
Civil Procedure,the decision of the referee upon the whole issue must stand as the decision of
the court, and upon the filing of the statement of decision with the clerk of the court,judgment
may be entered thereon in the same manner as if the action had been tried by the court. Any
decision of the referee and/or judgment or other order entered thereon shall be appealable to the
same extent and in the same manner that such decision,judgment, or order would be appealable
if rendered by a judge of the superior court in which venue is proper hereunder. The referee
shall in his/her statement of decision set forth his/her findings of fact and conclusions of law.
The parties intend this general reference agreement to be specifically enforceable in accordance
with the Code of Civil Procedure.
11. GENERAL PROVISIONS.
11.1 Capacities. Each individual and entity executing this Agreement
hereby represents and warrants that he, she or it has the capacity set forth on the signature pages
hereof with full power and authority to find the party on whose behalf he, she or it is executing
this Agreement to the terms hereof
11.2 Binding on Successors. The terms, covenants, and conditions
herein contained shall be binding upon and inure to the benefit of the successors and assigns of
the parties hereto.
11.3 Entire Agreement. This Agreement including all recitals and
exhibits hereto contains all of the covenants, conditions, and agreements between the parties and
shall supersede all prior correspondence, agreements, and understandings both verbal and
written. No addition or modification of any term or provision shall be effective unless set forth
in writing and signed by both Seller and Buyer, and pursuant to a resolution or ordinance (as
applicable) approved and adopted by the Alameda City Council.
11.4 Attorney's Fees. In the event either party to this Agreement
institutes an action or proceeding brought pursuant to Article 10 or otherwise, to interpret or
enforce the terms hereof, or to obtain money damages the prevailing party shall be entitled to
recover from the other, in addition to costs and judgment as awarded by the referee or court, its
attorney's fees incurred therein. The prevailing party shall include, without limitation, a party
who dismisses an action or proceeding for recovery hereunder in exchange for consideration
substantially equal to the relief sought on the action or proceeding. In the event Seller is
represented in a proceeding by attorneys employed with the City Attorney's Office, any award of
attorney fees to Seller shall be measured by the reasonable fees that would have been paid by
Seller had it instead been represented by outside counsel.
11.5 Brokers' Commission. Seller and Buyer each represent and
warrant to the other that neither Party has dealt with any real estate brokers or finders with
respect to the transaction contemplated hereby. Each Party agrees to indemnify and hold
harmless the other from any claim or claims, and costs and expenses, including attorneys' fees,
incurred by the indemnified party in conjunction with any claim or claims of any broker or
brokers to a commission in connection with this transaction as a result of the actions of the
indemnifying party.
11.6 Governing Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of California. The venue of any action
brought pursuant to this Agreement shall be the County of Alameda.
11.7 Captions. All captions and headings in this Agreement are for the
purposes of reference and convenience and shall not limit or expand the provisions of this
Agreement.
11.8 Time. Time is of essence of every provision herein contained in
this Agreement.
11.9 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:
To Seller: City of Alameda
Alameda City Hall
2263 Santa Clara Avenue
Alameda, CA 94501
Tel: (510) 747-4700
Attn: City Manager
with a copy to: City of Alameda
Alameda City Hall
2263 Santa Clara Avenue
Alameda, CA 94501
Tel: (510) 747-4750
Attn: City Attorney
(Remainder of page intentionally left blank)
To Buyer: [Insert]
with a copy to: [Insert]
Notices which are delivered by hand shall be deemed received upon delivery or the date on
which delivery is refused;Notices which are deposited in the United States Mail in accordance
with the terms of this Section shall be deemed received three (3) days after the date of mailing
and notices delivered by commercial courier service shall be deemed received the date of actual
delivery, or the date on which delivery is refused. The foregoing addresses may be changed by
notice to the other Party as herein provided.
11.11 Escrow Instructions. The Parties agree to execute such instructions
to Escrow Agent and such other instruments and do such other and further acts as may be
reasonably necessary to carry out any of the provisions of this Agreement.
11.12 Construction. The language in all parts of this Agreement shall in
all cases be construed simply according to its fair meaning and not strictly for or against any of
the Parties hereto. Section headings of this Agreement are solely for convenience of reference
and shall not govern the interpretation of any of the provisions of this Agreement. References to
"sections" are the Sections of this Agreement, unless otherwise specifically provided.
11.13 Possession. Possession of the Property shall be delivered to Buyer
upon Closing.
11.14 Non-Liability of Officials, Employees and Agents. No City
elected or appointed official, board member, commission, officer, employee, attorney, agent,
volunteer or their respective successors and assigns shall be personally liable to Buyer, or any
successor in interest, in the event of a default under or breach of this Agreement by Seller.
11.15 Severabilit}. If any section,term or provision of this Agreement is
held invalid by the referee or a court of competent jurisdiction, all other sections, terms or
severable provisions of this Agreement shall not be affected thereby, but shall remain in full
force and effect.
[Signatures follow on next page.]
IN WITNESS WHEREOF, the Parties hereto have executed one (1) or more
copies of this Agreement, on the date(s) set forth below, effective as of the day and year first
above written.
Signatures Must Be Notarized
SELLER: BUYER:
City of Alameda, The XX Family Trust
a charter city and municipal corporation
By:
By: _ - _ Name:XX,trustee
Jennifer Ott
City Manager Date:
Date:
By:
Name:
Date:
Attest:
By:
Lara Weisiger
City Clerk
Approved as to Form
By:
Michael Roush
Special Counsel
Authorized by City Council Ordinance No.
EXHIBIT A
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California, County of Alameda, City of
Alameda and is described as follows:
[Insert Legal Description]
APN: NONE.
10 Tidal Canal Lot 95
Exhibit B
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Fernside Boulevard,
Alameda, CA 94501
QUITCLAIM DEED
The undersigned Grantor declares:
Jennifer Ott, City Manager
County transfer tax is $.
City transfer tax is $.
(X ) computed on full value of property conveyed, or
( ) computed on full value less value of liens and encumbrances remaining at time of sale.
( ) Unincorporated area; or (X ) City of Alameda
This QUITCLAIM DEED (hereinafter the "Deed") is for Lot XX of Tract#XX which is on the
Alameda side of the Oakland Inner Harbor Tidal Canal in the City of Alameda, Alameda
County, California and is made and entered into, pursuant to City of Alameda Ordinance No. XX
adopted , by and between the CITY OF ALAMEDA, a charter city and municipal
corporation (hereinafter the "Grantor" or the "City") and FAMILY TRUST with XX as
trustee (hereinafter the "Grantee") (each a"Party" and collectively the "Parties"). The Deed is
entered into in furtherance of the Tidal Canal Lot Purchase and Sale Agreement between the
Grantor and Grantee dated December 20, 2016 (the "PSA"), which is incorporated herein by
reference and specifies terms and conditions for the conveyance and acceptance of Lot 95.
3 Tidal Canal Lot 95
WITNESSETH THAT the Grantor, for and in consideration of the applicable promises of the
Grantee set forth in the PSA, does hereby REMISE, RELEASE, AND FOREVER QUITCLAIM
unto the Grantee, its successors and assigns, all rights,title, and interest of the Grantor in and to
that certain Lot XX, subject to the PSA, described in Exhibit"A"attached hereto and made a
part hereof, as more particularly depicted by the Final Map recorded in Book at Page
in the official records of the County of Alameda(the "Property.")
SUBJECT TO all valid and existing reservations, covenants, conditions, restrictions,
improvements and easements,including,but not limited to: pipelines, and public utilities, if any,
whether of public record or not;
TO HAVE AND TO HOLD the Property granted herein to the Grantee, its successors and
assigns,together with all and singular the appurtenances, rights, powers, and privileges thereunto
belonging or in anywise appertaining, and all the estate, rights,title, interest, or claim whatsoever
of the Grantor, either in law or in equity, and subject to the reservations, covenants, conditions,
and restrictions set forth in the Deed.
AND IT IS FURTHER AGREED AND UNDERSTOOD by and between the Parties hereto
that the Grantee, by its acceptance of the Deed, and as part of its consideration for the
conveyance made herein, covenants and promises for itself, its successors and assigns, forever,
that the Deed is made and accepted upon each of the reservations, covenants, conditions and
restrictions in that certain Quitclaim Deed entered into between the United States of America and
the City of Alameda dated January , 2017 ("Army Corps Deed"), recorded in the Official
Records of the County of Alameda, which covenants, conditions and restrictions are incorporated
herein by reference as if set forth verbatim, all of which shall be binding upon and enforceable
against the Grantee, its successors and assigns, in perpetuity, by the Grantor and other interested
parties, as may be allowed by law; that the reservations, covenants, conditions, and restrictions
set forth herein are a binding servitude on the Property and shall be deemed to run with the land;
and that the failure to include the reservations, covenants, conditions, and restrictions in
subsequent conveyances of the Property or portions thereof will not abrogate the status of these
reservations, covenants, conditions, and restrictions as binding upon the Grantor and Grantee,
their successors and assigns.
AND IT IS FURTHER AGREED AND UNDERSTOOD by and between the Parties hereto
that the Grantee, by its acceptance of the Deed, and as part of its consideration for the
conveyance made herein, covenants and promises for itself, its successors and assigns, forever,
that the Deed is made and accepted upon each of the reservations, covenants, conditions and
restrictions in the PSA and in that certain Declaration of Covenants, Conditions, and Restrictions
by the City of Alameda, recorded concurrently herewith in the official records of the County of
Alameda ("City's CC&Rs"),recorded concurrently herewith in the official records of the
County of Alameda, all of which shall be binding upon and enforceable against the Grantee, its
successors and assigns, in perpetuity, by the Grantor and other interested parties, as may be
allowed by law; that the reservations, covenants, conditions, and restrictions set forth herein are a
binding servitude on the Property and shall be deemed to run with the land; and that the failure to
include the reservations, covenants, conditions, and restrictions in subsequent conveyances of the
Property or portions thereof will not abrogate the status of these reservations, covenants,
4 Tidal Canal Lot 95
conditions, and restrictions as binding upon the Grantor and Grantee, their successors and
assigns.
1. No violation or breach of the covenants, conditions, restrictions, provisions or
limitations contained in this Deed shall defeat or render invalid or in any way impair the lien or
charge of any mortgage, deed of trust, or other financing or security instrument. However, any
successor of Grantee to the Property shall be bound by such remaining covenants, conditions,
restrictions, limitations and provisions, whether such successor's title was acquired by
foreclosure, deed in lieu of foreclosure, trustee's sale, or otherwise.
2. The covenants contained in this Deed shall be, without regard to technical
classification or designation, legal or otherwise specifically provided in this Deed, to the fullest
extent permitted by law and equity, binding for the benefit and in favor of and enforceable by the
Grantor, (and/or the United States of America as to the covenants in the Army Corps Deed),
Grantor's successor and assigns, and any successor in interest to the Property or any part thereof,
and such covenants shall run in favor of the Grantor and such aforementioned parties for the
entire period during which such covenants shall be in force and effect, without regard to whether
the Grantor is or remains an owner of any land or interest therein to which such covenants relate.
In the event of any breach of any of such covenants, the Grantor and such aforementioned parties
shall have the right to exercise all of the rights and remedies, and to maintain any actions at law
or suits in equity or other property proceedings to enforce the curing of such breach. The
covenants contained in this Deed shall be for the benefit of and shall be enforceable only by the
Grantor, its successors, and such aforementioned parties.
3. Only the Grantor, its successors and assigns shall have the right to consent and
agree to changes or to eliminate in whole or in part any of the covenants, conditions or
restrictions contained in this Deed or to subject the Property to additional covenants, easements,
or other restrictions.
4. In the event there is a conflict between the provisions of this Deed and the PSA, it
is the intent of the parties hereto and their successors in interest that the Deed shall control.
5. This Deed may be executed and recorded in two or more counterparts, each of
which shall be considered for all purposes a fully binding agreement between the parties.
NO CONDITIONS FOLLOW
[Signatures on next page.]
5 Tidal Canal Lot 95
IN WITNESS WHEREOF,the Parties hereto have executed this Quitclaim Deed on this
day of February 2017.
GRANTOR:
City of Alameda,
a charter city and municipal corporation
By:
Jennifer Ott
City Manager
Date:
Approved as to Form
By:
Michael Roush
Special Counsel
Authorized by City Council Ordinance No.
[Signatures of Principals Must Be Notarized]
[Additional Signatures on Next Page]
6 Tidal Canal Lot 95
By acceptance of this Quitclaim Deed, the herein named Grantee hereby agrees that Grantee, and
his or her successors and assigns, is and will be bound by each and every covenant, condition
and restriction contained in that certain Declaration of Covenants, Conditions and Restrictions of
the City of Alameda, recorded concurrently herewith in the official records of the County of
Alameda.
GRANTEE:
The XX Family Trust
By:
Name: , trustee
Date:
[Signatures of Principals Must Be Notarized]
7 Tidal Canal Lot 95
A notary public or other officer completing this
certificate verifies only the identity of the individual who
signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
STATE OF CALIFORNIA
COUNTY OF ALAMEDA
On , 2024 before me, ,Notary personally appeared Jennifer
Ott, City Manager for the City of Alameda who proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and acknowledged to me that
she executed the same in her authorized capacity, and that by her signature on the instrument the
person, or the entity upon behalf of which the person 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.
(Seal)
Notary Public in and for said County and State
8 Tidal Canal Lot 95
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,
(here insert name and title of the officer)
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.
(Seal)
Name (typed or printed), Notary Public in
and for said County and State
9 Tidal Canal Lot 95
EXHIBIT C
DECLARATION OF COVENANT, CONDITIONS AND RESTRICTIONS
I, the undersigned, hereby certify that the foregoing Ordinance was duly and
regularly adopted and passed by the City Council of the City of Alameda on the 3rd day
of September 2024, by the following vote to wit:
AYES: Councilmembers Daysog, Herrera Spencer, Jensen, Vella
and Mayor Ezzy Ashcraft — 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 4th day of September 2024.
Lara Weisiger, City Clerk
City of Alameda
APPROVED AS TO FORM:
Yibin Shen, City Aftorney -`
City of Alameda __
11 Tidal Canal Lot 95