Execution Version 12-8-2011
AMENDMENT NO.2
TO THE
MEMORANDUM OF AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
ACTING BY AND THROUGH
THE SECRETARY OF THE NAVY
UNITED STATES DEPARTMENT OF THE NAVY
. AND
THE ALAMEDA REUSE AND REDEVELOPMENT
AUTHORITY
FOR CONVEYANCE OF
PORTIONS OF THE NAVAL AIR STATION ALAMEDA
FROM
THE UNITED STATES' OF'AMERICA
TO
THE ALAMEDA REUSE AND REDEVELOPMENT
AUTHORITY
4819·5341-1758.J
Exhibit 3
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I AMENDMF..NT NO.2
2 TO THE
3 MEMORANDUM OF AGREEMENT
4 BE~~EN
5 THE UNITED STATES OF AMERICA
6 ACfJNG BY AND THROUGH
7 THE SECRETARY OF THE NAVY
8 UNITED STATES DEPARTMENT OF THE NAVY
9 ANP
10 THE ALAMEDA REUSE AND REDEVEWPMENT AUTHORITY
11 FOR 'CONVEYANCE OF
12 PORTIONS OF THE NAVAL AIR STATION ALAMEDA
13 FROM
14 THEUNITEDSTATESOFAMtRICA
15 TO
16 THE ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY
17 18 TIns AMENDMENT NO. TWO (2) to the Memorandum of Agreement between the 19 United States of ,America acting by and through the Secretary of the Navy, United States 20 Department of the Navy, and the Alameda Reuse 8IldRedeveiopment Authority for Conveyance 21 of Portions of the Naval Air Station Alameda from the United States of America to the Alameda 22 R~ and Redevelopment Authority dated June 6, ,2000 ("Agreement") is entered into on this 23 I~ . :;..(\ay of January, 2012 by and between THE UNITED STATES OF AMERICA, acting 24 by and througb the Department of the Navy ("Govemmen.r'), and TIlE ALAMEDA REUSE 25 AND REDEVELOPMENT AUTHORITY ("Authority"), reeognize!i as the local 26 redevelopment authority by the Office of Economic Adjustment on behalf of the Secretary of 27 Defense. Government and AuthoriIY arc sometimes referred to herein collectively as the 28 "Parties."
29 30 RECITALS
31 32 WHEREAS,the Parties entered into the Agreement for the "No Cost" EGonomic 33 Development Conveyance C"EDC"} to the Authority of a portion of the fonnerNaval Air Station 34 Alameda ("Property"), as amended, pursuant to Section 2905(b)(4) of t/.Ie Defense Base Closure 35 and R~igrunent Act of 1990, as amended, and the implementing regulations of the Department 36 of Defense (32 CFR Part 174);
37 38 WHEREAS, the Parties entered into that eertain Term Sheet for Amendment (No, 2) to 39 the Memorandum of Agreement 'for the Conveyance of Portions of the Naval Air Station 40 Alameda from the United States of America to the Alameda Reuse and Redevelopment 41 Authority dated October 5, 2011 ("T~ Sheet");
42 43 WHEREAS, through the Term Sheet, the Parties each reconfinned their commitment to 44 the goals, objectives, and requirements contained in the Agreement. Nevertheless, to ensure the 45 Property is developed in accordance with the 1996 NAS Alameda Community Reuse Plan 2 •
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("Reuse Plan"), the Parties agree to include in the Agreement an ~nforcement mechanism to deter development different n-om that contemplated by the Reuse. Plan; WHEREAS, the Parties wish to enter into this Amendment in order to implement those agreements contained in the Term Sheet; and
WHEREAS, subsequent to. the execution and delivery of the Agreement, the Parties determined that in accordance with the Reuse Plan, it will be desirable and necessary to include within the scope of the Agreement certain additional submerged land and improvements (the "Submerged Land"), described in Exliibit"K" attached ~ereto.
NOW, THEREFORE, in consideration of the foregQing premises and the respeCtive representati9DS, agreements, covenants and· conditions herein contained, and other good and valuable consideration, the receipt and sufficienCY of which are hereby acknowledged, the Parties agrce as follows.
AGREEMENTS
Article 1. Conveyance Schedule.
a Article 3(b) of the Agreement is hereby deleted in its entirety and repJacedwith the following:
"(b) The Property shail be conveyed in fee simple by one 9r more good and sufficient Quitclaim Deeds. The Government shall use best efforts to convey ail of its right, title and interest in the Property in accordance with the conveyance scliedlile attached hereto as Exhibit L ("Conveyance Schedule"). The Govermnent shall prepare and submit to the Authority an annual comprehensive and cumulative report that provides an update on the status of all parcels not yet transferred in accordance with the C9nveyance Schedule ("Conveyance Schedule Repor\"). TIle C9nveyance Schedule Report shall identifY any amended dates for conveyance of the Property, if necessary. The first Convcyance Schedule Report shall be provided to the Authority on or before the one year anniversary of Amendment No.2 to Agreement, and shall be provided annually thereafter until such time as all of the. Property is conveyed in fee to the Authority."
Article 2. Enforcement Mechanism to Ensure Compliance with the Reuse Plan. a. The follo~ section (g) is hereby added at the end of Article 3 of the Agreement:
"(8) The Parties recognize that the Reuse Plan contemplated a total of two thousand seven hundred and thirty seven (2,737) residential units, with two thousand and eleven (2,011) residential Wlits beins construct.¢ on the Property subject to the Agreement (the "Residential Base-Line Amount").
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1. The Authority shall prepare and submit to the Government an annual comprehensive and cumulative report that identifies the number of residential units for which a certificate of occupancy has been issued on the Property during the reporting period (''Unit Report").
2. The first Unit Report shall contain a cumulative count of the existing !;tsidentiallinits conmuctC4 on the Property and sliall be provided to the Government 'on September 30, 2012. Subseq\lent Unit Reports s.hall be pI!lvided to the Government annually within ninety (90) days following the completion of the Authority's fiscal year and. shall continue until such time as the Property iSl'idly develo~. .
3. In the event tlmt a Unit Report identifies that the Residential Base- Line Amount is exceeded on the Property, for every matket-rate residential unit granted a certificate or occupancy ("Excess Residential Unit"), the Authority shall pay the Government the fixed sum of Fifty Thousand Dollars ($50,000.00). Such sum shall be adjusted for inflation , based on the difference between the Case-Shiller Home Price Index for the San Francisco Bay area (i) as of the date of the first conveyance of a portion of the Property in fee Sllbsequent to the execution of Amendment No. 2 to the Agreement, and (ii) as of the date that land for such marleet-rate residential unit is conveyed to a third party by the Authority. Any such payments due to the Government shall be paid by the Authority within three (3) months following the submission of such Unit Report."
Article 3. Use of Proceeds from Sale or Lease.
a. Article 6 of the; Agreement is hereby amended as follows:
1. In subparagraph (a): delete "during the first seven years after the recordation of the first Deed for. a part of the 'Property" and replace with "during the twenty-five (25) year period following the execution of Amendment No.2 to the Agreement".
2. Delete subparagraph (d) in its entirety and replace with the following:
"(d) Authority shall submit to the Government an annual financial statement certified by an independent certified public accountant. The statement shall cover the Authority's use of proceeds ii receives from the sale, lease; {>r equivalent use of the PrOperty.
The first statement shall cover the period beginning July I, 2012~ the first day of the Authority's fiscal year, and ending on June 30, 2013; the last day of the Authority'$ fiscal year, and el!ch subsequent statement shall-cover the Authority'S previous fiscal year. The statement shall be delivered to the Government annually within sixty (60) days of the end of Authority's fiscal year."
Article 4. Addition of Submerged Land.
The definition of "Property" as defined in Article 2 of the Agreement is amended to include the property described as "Submerged Land" and depicted on Exhibit UK" attached to this Amendment No.2 and made part of the Agreement.
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46 ArticleS. MisceUaneous Updates to Agreement
a. FOrm of -Quitclaim Deeds. Article 3(c) of the Agreement is amended to add at the end thereof, the following D(:W sentences:
"The Quitclaim Deed attaChed as Exhibit "B-2" to the Agreement, fonn of quitclaim deed for a conveyance of any portion of the Property to be conveyed following the due execution of a FOSET, and the Quitclaim Deed attaChed as Exhibit "B-3" tol\le Agreement, fonn of quitclaim deed· for a convey~ce of lIiIy portions. of the Property other thllil EDC-4, the East Honsing Portion, to be conveyed following the due execution of a FOST, shall be updated at the time of conveyance of such Pro~ to inCOrpOrate the changes prescribed in Paragraphs 5.1.2, 55, 5.8,
5.9, 5.l0 and 5.11 of DoD rnstruction 4165.72 issued Decel1lber 21, 2007. Any and all such references in the Agreement to Exhibits "B-2" and "B-3" as the forms of quitclaim deeds to be nsed for the conveyance of the Property shall now mean those forms of quitclaim deeds updated to incorporate the changes prescribed by DoD Instruction 4165:72 issued December 21; 2007." h. FOS! process. Recital 4 of the· Agreement is amended to .add at the end thereof, the following new sentence:
"Such FOSTs or FOSETs prepared after March 1, 2006, were, or shall be, prepared, in accordance with the Base Redevelopment and Realignment Manual dated March I, 2006 (the· "BRRM'').''
c. Notices. The Parties listed in Article 15.ofthe Agreement are hereby deleted and replaced with the following:
"Ie to Authority:
"With a copy to:
"And to:
4819·5347·1758.1
Executive Director
Alameda Reuse and Redevelopment Authority
Alameda, City Hall .
2263 Santa.C1ara Avenue
Room 380
Alameda, CA 94501
Filcsimiie: 510-865-4048
Gcneral Counsel
Alameda Rense and Redevelopment Authority
Alameda City Hall
2263 Santa Clara Avenue
Room 280
Alameda, CA 94501
Facsimile: 510-748-469i
George Schlossberg, Esq.
Kulak Rock LLP
1101 Connecticut Avenue, NW
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Suite 1000
Washington, DC 20036
Facsimile; 202-828-2488
"If to Government; Director, Base Realignment Ii!id Closure Progtam Management Office
Naval Facilities Engineering Command
1455 Frazee Road, Suite 900
San Diego, CA:92108
Facsimile: (619) 532-0780"
e. Dispute Resolution Managers. The second sentence· of Article 26(h) of the AgreementMall be amended to read as foIiows:
"The Director. Base ReaJjgnment and Closure Program Management Office, Naval Facilities Engineering Command and the Executive Director of the Authority shall serve as Dispute Resolution Managers for t1ieir respective organizations." Article 6. Survival and Benefit
8. Unless defined separately, the tenns used in this Amendment No.2 shall be the same as used and defined in the Agreement.
b. Except as set forth herein, and unless modified specifically by this Amendment No.2, the tenns and conditions contained in the Agreement shall remain binding upon the Parties and their respective suCcessors and assigns as set·forthin the Agreement. [Signature8 on the FoUowing Page)
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28 In Witness Whereof, the Parties, intending to be legally bol1lld, have cal!SCd their duly authorized representatives to execute and deliver this Amendment No.2 as of the date frrst above written.
UNTTED STA TES·OF ;(MERICA;·
Acting 'by and ihrough the epartment of the Navy
--It---I
Name: William R eatsillo
Real EState Contracting Officer
Departinent of the Navy
ALAMEDA REUSE AND REDEVELOPMENT AUTHORITY
Name/.::;J; L (d"slt
Title: CiJ 11""'lJ,r
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7 State of California}
County of Alameda}
On January 3.2012 before me, Irma R. Glidden ,a Notary Public, (dale)
personally appeared John Russo , who proved to me on the basis of satisfactory evidence to be the person~whose namE$}' lsIMe' subscribe,d to the within instrument and acknowledged to me that he/sf:lefll'ley executed the same in his/l'lerftl1eir authorized capacity(ie&), and that by his/her/-ti'teir signature~ on the instrument the person(.a-), or the entity upon behalf of which the person($) acted, executed the instrument.
I certify under PENAL TV OF PERJURY under the laws of the' State of California that the foregOing paragraph is true and correct. r~--~"~' c IRM; R: G1.n:\'oEN' , -f: " COMM.#1845818 ! WITNESS my hand and official seal. 1~ :-:J; "~trM~~cW~ .. 3 ~ ""* My Comn'I .. expireS Apt1123. 1 "vOJQVOC::;C
Signature _-fcA~ff'Muk'LJO<j:4""I,--,-,f<c:... -",6Uo..:..:..""~,,,-' =' ==---_ (Seal) AII-Purposo Acknowledgment
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before me, --CloD,,, 0' B"i<M Ylo\-.~ IXJb Ii' C. (lll!f1:in5l,Jn;unc~~A. ,Jh,t:, O':;m;',,,,,::':')'-"=~----- ---- personallyappearep wil\~~_,A. ~c.lJl\~lo~ _____ _
who proved to me on thc ba~is of :;atisJi!ctoryevidencc to be the pcrson(s) whi)sc name(s) is/arc subscribed to the wiihin instrument and acknowledged to inC that he/she/they executed the same in hislher/thcir authorized capncity(ics), and that by hislhcr/their signature(s) on the instrument thc pcrsqn(s), or the entity upon behalf of which th,e pcrson(~) acted, executed the instrument.
I certi/y under PENALTY 01' PIlRJU'RY under the laws of the State ofCalilbmialhat the foregoing paragraph is .true and correct ~~' , , , - , , •• FH8M' OT8RlrN' r' f J Conrnl .. htIt • 19821011
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WITNE, ,SS my handan~~ ~,~J' . Sl~ fr .. cllco County ~ ~~ // Comm.h 1".Oee 25. 2015
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AI)I)ITIONAL OPTIONAL INFORMATION
DE.~CRIPTION OF THE ATTACHED DOCUMENT
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CAPACITY CLAIMED BY THE SIGNER
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INSTRUcnONS FOR COMPLETING TillS FORM
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ftidJ..:ull: the cotn.'i:t sil.gular or plural 10",", by Cr0s:5ing orr ..,correa forms (r.c. twhhclUwr. is IeH ) Or circtin& tt.:'OOI1'Qtl. tQ(ms. ftulure·to correctly mdicen: this inrormafion may k3d to 1\:j4.,\:IMlft or docutnc1l1 rocordinl, .• "rhi: nutory seal Impl\."Ssion must be: .clc.:.r ond photul\fl1phiallly reprOOucibk.".
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+ Additional infOfTMtion is no, n.",uiNd 001 could ht..'Ip 10 ensure \his ackno\\.iedgmcnlls nul miSU5Ud or QUlXhod to 0: Ilirre!\''nt documenl -> IndlC8k"litlc or typo of allachod dowf'n,,::nt. numhl:r of peg~ lind !.btc (0 IndICate (he coap:.c;IY claimed lI)' the Siinct', Ir lhe d3.nlll!d C3.pucu}" IS " (;orpor;n ... offICer. indta/lc the litle (i.e. eno, Cfcl. Seem ... !)') . &.x:urcly attach ~his docul1);tl( to the :ug11!.Xl d(M;01nl:1I1 2OO1! Version CAM vJl.IO,P7·800-873-9865 www.NUlAl).CI!as:so.cpm i'
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ATIACHMENT I
Exhihit K to the Agreement
Submerged Land Addition
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~ HAW IXIfI(YMI;[ - I'HAS[ 1 (2012)
~ NAVY COIf'CANCE - I'tfAS( 2 (2014.
c:::J NAVY COINE't'ANCE - PHA5[ 3 ~ 20\~)
MAW C(II\£tMfC[ - I'HAS( 4 (2011)
ALAMEDA POINT
NAVYCONVEYANCE~
APPROX CONVEYANCE DATES: 2012, 2014, 2015 & 2019
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