Office of Executive Officer CONSENT CALENDAR June 24, 2014 To: From: Honorable Chairperson and Members of the Successor Agency to the Redevelopment Agency Christine Daniel, Executive Officer Submitted by: Eric Angstadt, Director, Planning and Development Subject: Assignment of Lease and Disposition Agreement, Quitclaim Deed and Certificate of Acceptance for Parcels Associated with the Ground Lease of Oceanview Garden Apartments RECOMMENDATION Adopt a Resolution authorizing the Executive Officer to execute an Assignment of Lease and Disposition Agreement, Quitclaim Deed and Certificate of Acceptance between the Successor Agency to the Redevelopment Agency of the City of Berkeley, and the City of Berkeley in its role as the Successor Housing Agency for the parcels associated with the Ground Lease of Oceanview Garden Apartments located at 1715-1735 Fifth Street, 1726-1732 & 1816-1832 6 th Street and 813-815 ½ Hearst Street, in the City of Berkeley, County of Alameda. FISCAL IMPACTS OF RECOMMENDATION None. There is no cash being transferred. CURRENT SITUATION AND ITS EFFECTS On March 5, 2014, the Department of Finance (DOF) issued approval of Oversight Board Resolution 2013-06 N.S. approving title transfer of the Oceanview Garden Apartments parcels and transfer of the ground lease from the Successor Agency to the City, in its role as Successor Agency for Housing. BACKGROUND Due to lack of clarity about the definition of a housing asset, the Successor Agency did not include these properties on its Housing Asset Transfer form that was approved by the DOF on September 5, 2012. It was determined that the ongoing use of these properties is for low and moderate income housing and they should be transferred to the Housing Successor Agency. The Agency also indicated that the parcels of land and the ground lease are housing assets as defined in Health and Safety Code (HSC) section 34176 (e). HSC section 34176 (a) (1) states if a city elects to retain the authority to perform housing functions previously performed by a redevelopment agency, the housing assets shall be transferred to the city. 2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099 E-Mail: manager@cityofberkeley.info Website: http://www.cityofberkeley.info/manager
Assignment of Lease and Disposition Agreement, Quitclaim Deed CONSENT CALENDAR and Certificate of Acceptance for Parcels Associated with the Ground Lease June 24, 2014 of Oceanview Garden Apartments ENVIRONMENTAL SUSTAINABILITY There are no identifiable environmental effects or opportunities associated with the subject of this report. RATIONALE FOR RECOMMENDATION To meet compliance standards, the housing assets must be transferred to the Berkeley Housing Successor Agency. ALTERNATIVE ACTIONS CONSIDERED None. CONTACT PERSON Eric Angstadt, Director, Planning and Development, 510-981-7401 Attachments: 1: Resolution: Exhibit A Assignment of Lease Agreement Exhibit B Quitclaim Deed Exhibit C Certificate of Acceptance Page 2
RESOLUTION NO. ##,###- ASSIGNMENT OF LEASE AND DISPOSITION AGREEMENT, QUITCLAIM DEED AND CERTIFICATE OF ACCEPTANCE FOR PARCELS ASSOCIATED WITH OCEANVIEW GARDEN APARTMENTS WHEREAS, the Successor Agency did not include these properties on its Housing Asset Transfer form that was approved by the Department of Finance (DOF) on September 5, 2012; and WHEREAS, it was determined that the ongoing use of these properties is for low and moderate income housing and they should be transferred to the Housing Successor Agency; and WHEREAS, the Agency demonstrated the parcels of land and the ground lease are housing assets as defined in HSC section 34176 (e); and WHEREAS, Health and Safety Code (HSC) section 34176 (a) (1) states if a city elects to retain the authority to perform housing functions previously performed by a redevelopment agency, the housing assets shall be transferred to the city; and WHEREAS, on November 18, 2013 the Oversight Board approved by Resolution 2013-06 N.S. to transfer title of the Oceanview Garden Apartments parcels and transfer the ground lease from the Successor Agency to the City, in its role as Successor Agency for Housing; and WHEREAS, on March 5, 2014, the Department of Finance issued approval of the Oversight Board Resolution to transfer title parcels and transfer the ground lease from the Successor Agency to the City. NOW THEREFORE, BE IT RESOLVED by the Successor Agency to the Berkeley Redevelopment Agency, that it hereby approves Exhibit A, the Assignment of Lease Agreement, Exhibit B, the Quitclaim Deed and Exhibit C, the Certificate of Acceptance for Parcels Associated with the Oceanview Garden Apartments located at 1715-1735 Fifth Street, 1726-1732 & 1816-1832 6 th Street and 813-815 ½ Hearst Street, in the City of Berkeley, County of Alameda. Exhibits A. Assignment of Lease Agreement B. Quitclaim Deed C. Certificate of Acceptance
EXHIBIT A ASSIGNMENT OF LEASE AGREEMENT This ASSIGNMENT OF LEASE AND DISPOSITION AGREEMENT ( Assignment ) is made as of, 2014,between the Successor Agency to the former Berkeley Redevelopment Agency of the City of Berkeley (the Assignor ), and the City of Berkeley, a municipal corporation in its role as the Successor Housing Agency (the Assignee ). Recitals A. Assignor, as the successor to the Redevelopment Agency of the City of Berkeley, is the owner of certain property located at 1715-1733 Fifth Street; 1726-1732 Sixth Street; 1816-1832 Sixth Street and 813-815 ½ Hearst Avenue ('Property"). B. The Redevelopment Agency of the City of Berkeley ( Lessor ), and Assignor, executed a lease dated September 30, 1982 ( Lease ), with E&I Development Associates for a fifty-five (55) year term, beginning on September 30, 1982 and ending September 29, 2037 whereby the Lessor leased to the E & I Development Associates the Property for the primary purpose of operating a low and moderate income housing development and was recorded on September 30, 1982 as Instrument No. 82-149148 and re-recorded on January 17, 1984 as Instrument No. 84-009853 in the Official Records of Alameda County, California for the Lease of that certain real property located at 1715-1735 Fifth Street, 1726-1732 & 1816-1832 6 th Street, and 813-815 ½ Hearst Street in the City of Berkeley, County of Alameda, a copy of which is attached and incorporated by reference as Exhibit A C. The Lease was amended with an extension of term and assignment. The lease amendment ( Amendment ) was made on January 20, 2004, between the Redevelopment Agency of the City of Berkeley ( Lessor ), E&I Development Associates ( E&I ), and Ocean View Gardens, LLC, a California limited liability company ( Ocean View or Lessee ). E&I assigned all of its rights; title and interest in, to, and under the Lease and Premises to Ocean View, and Ocean View accepted that assignment on, and subject to, all of the terms and conditions in the Amendment. The Amendment extends the term to March 29, 2059. D. On February 1, 2012 all redevelopment agencies, including Lessor, were dissolved throughout the State of California and successor agencies were created to wind down redevelopment affairs. With the dissolution of the RDA, Assignor succeeded to the rights and responsibilities of the RDA, including the rights and responsibilities of the Assignor under the Lease.
E. The Redevelopment Dissolution Act provided for housing assets of the former Redevelopment Agency to be transferred to the designated housing successor to the former Redevelopment Agency. The Assignee is the designated housing successor to the former Redevelopment Agency. F. Assignor desires to assign the Lease to Assignee, and Assignee desires to accept the assignment of the Lease from the Assignor on the terms and conditions set forth herein. Agreements NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are acknowledged, Assignor and Assignee agree as follows: 1. Assignment. Assignor assigns and transfers to Assignee all of its right, title, and interest in, to, and under the Lease and Premises. Assignee accepts this Assignment, assumes all of Lessor s obligations under the Lease, and agrees to be bound by all of the provisions of the Lease and to perform all of the obligations of the Lessor under the Lease as a direct obligation to Lessee from and after the effective date of this assignment. This assignment and assumption is made on, and is subject to, all of the terms, conditions and covenants of this agreement. In connection with the foregoing assignment Assignor hereby agrees to execute and deliver a quitclaim deed from the Successor Agency to the former Berkeley Redevelopment Agency of the City of Berkeley to the City of Berkeley as the Successor Agency for Housing, quitclaiming all of the Assignor's interest in the land subject to the Lease. 2. Assignor's Covenants. Assignor covenants that the copy of the Lease attached as Exhibit A and the copy of the Amendment to Lease attached as Exhibit B are true and accurate copies of the Lease and Amendment as currently in effect and that there exists no other agreement affecting Assignor's interest under the Lease. Assignor covenants that the Lease is in full effect and no default exists under the Lease, nor any acts or events which, with the passage of time or the giving of notice or both, could become defaults. 3. Indemnification. Assignor will at all times indemnify and hold harmless Assignee from and against any loss, cost, liability, damages, injury, and/or or expense, including attorney's fees and court costs, arising out of the Lease and Amendment on or prior to the date of this Assignment. 4. Successors and Assigns. This Assignment shall be binding on and inure to the benefit of the parties to it, their heirs, executors, administrators, successors in interest, and assigns.
5. Governing Law. This Assignment shall be governed by and construed in accordance with California law. IN WITNESS WHEREOF, Lessor and Assignee have executed this Assignment as of the date written on the first paragraph above. SUCCESSOR AGENCY TO BERKELEY REDEVELOPMENT AGENCY CITY OF BERKELEY, a municipal corporation APPROVED AS TO FORM: BY: Agency Executive Director City Manager City Attorney REGISTERED BY: ATTEST: City Auditor City Clerk
EXHIBIT B RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Berkeley Successor Agency to the former Berkeley Redevelopment Agency c/o City of Berkeley 2118 Milvia Street, 3 rd Floor Berkeley, CA 94704 Attention: Eric Angstadt FORM OF QUITCLAIM DEED [SPACE ABOVE FOR RECORDER S USE ONLY] QUITCLAIM DEED This transfer is exempt from Documentary Transfer Tax pursuant to Revenue & Taxation Code 11922 under the Revenue and Taxation Code because Grantee is a governmental agency acquiring title, and exempt from Recording Fees pursuant to California Government Code Section 27383. The Berkeley Successor Agency to the former Redevelopment Agency of the City of Berkeley, a public body of the State of California and successor-in-interest by operation of law to the Redevelopment Agency of the City of Berkeley, does hereby REMISE, RELEASE AND FOREVER QUITCLAIM to the City of Berkeley, acting as the Successor Housing Agency, a municipal corporation, all of its right, title, obligations and interest in, to, and under the real property located in the City of B e r k e l e y, C o u n t y o f A l a m e d a, State of California, more particularly described on Exhibit A attached hereto, and all improvements and fixtures located thereon. IN WITNESS WHEREOF, the undersigned has executed this Quitclaim Deed as of the date set forth below. Dated:, 2014 BERKELEY SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT AGENCY OF THE CITY OF BERKELEY, a public body By: Name: Title: Christine Daniel Executive Officer ATTEST: City Clerk
EXHIBIT B STATE OF CALIFORNIA ) ) ss COUNTY OF ALAMEDA ) 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 of Notary Public SEAL:
Legal Description EXHIBIT B
EXHIBIT B
EXHIBIT C CERTIFICATE OF ACCEPTANCE OF REAL PROPERTY This is to certify that the interest in real property conveyed to the Successor Agency to the Redevelopment Agency of the City of Berkeley ( Successor Agency ) by that certain Quitclaim Deed dated:, executed by the City of Berkeley is hereby accepted by the undersigned office on behalf of the Successor Agency pursuant to the authority conferred by the Successor Agency at the joint City Council and Successor Agency meeting held on, and the grantee consents to recordation thereof by its duly authorized officer. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Acceptance as of the date set forth below. Dated:, 2014 BERKELEY SUCCESSOR AGENCY TO THE FORMER REDEVELOPMENT AGENCY OF THE CITY OF BERKELEY, a public body corporate and politic By: Name: Title: Christine Daniel Executive Officer ATTEST: City Clerk
STATE OF CALIFORNIA ) ) ss COUNTY OF ALAMEDA ) 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 of Notary Public SEAL: