Recording requested by, and when recorded
return to:
Attn:
(Space above this line for Recorder 's use)
AMENDED AND RESTATED DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS PROVIDING FOR EASEMENTS SUPPORTING AIR SPACE
PARCEL AND ALLOCATION OF DEVELOPMENT MGHTS
THIS AMENDED AND RESTATED DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS PROVIDING FOR EASEMENTS SUPPORTING AIR SPACE PARCEL AND ALLOCATION OF DEVELOPMENT RIGHTS (the "Amended Declaration") is made and entered into as of__, 2024, by Wareham Development Corporation, a California corporation ("Wareham"), and National Railroad PassengerCorporation ("Amtrak"). Wareham and Amtrak together are the Declarant under this Amended Declaration. Each is referred to herein individually as a "Party," and they are sometimes collectively referred to as the "Declarant" and sometimes as the "Parties." This Amended Declaration amends and restates in its entirety that certain Declaration of Covenants and Restrictions Providing for Easements Supporting Air Space Parcel and Allocationof Development Rights dated as of December 10, 2019, made by Wareham, as the Declarant thereunder, and recorded on December 19, 2019, as Document No. 2019260220 in the Official records ofAlameda County, California.
RECITALS
This Amended Declaration is made upon the basis of the following facts, understandings and intentions:
A. This Amended Declaration pertains to contiguous parcels of real property (the "Parcels") located in the City ofEmeryville, California, owned by the Parties, as follows:
(i) Station Parcel. Immediately prior to and in connection with the execution of this Agreement, Wareham conveyed title to that certain parcel of land, including the air rights from the surface of the ground to immediately below a plane level elevation of 49.50 feet, havingan address of 5855 Horton Street, Emeryville, California, which parcel is more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the land and theair rights immediately below a plane level of 49.50 feet shall collectively be referred to as the "Station Area") as improved with a building that serves as the Emeryville station for Amtrak rail 00498\062\8207167.vl3
Attachment 3
operations (the "Station Building", and together with the Station Area, the "Station Parcel") to the City ofEmeryville ("City") and the City conveyed title to the Station Parcel to Amtrak. (ii) Air Space Parcel. Wareham owns the air space above the Station Parcel, consisting of the space above the plane level elevation of 49.50 feet above the Station Parcel, saidair space being more particularly described on Exhibit B attached hereto and incorporated herein by this reference (the "Air Space Parcel").
B. The Station Parcel and the Air Space Parcel were created by virtue of that certain Parcel Map 10899 recorded in the Official Records of the Recorder of Alameda County, California, on October 24, 2018, in Book 340 of Maps, at Pages 98 and 99. The Station Parceland the Air Space Parcel are sometimes referred to herein individually as a "Parcel" andcollectively as the "Parcels" or the "Property." C. Declarant desires to amend and restate certain easement rights burdening the Station Parcel for the benefit of the Air Space Parcel, including rights of support and access as provided for herein, and further desires to amend and restate the allocation between the Parcels of development rights that are attendant to the Property in the aggregate.
NOW, THEREFORE, in consideration of the foregoing and for good and valuable consideration, Wareham and Amtrak covenant, agree and declare that the Parcels shall be held,conveyed, encumbered, leased, rented, used, occupied, sold and improved subject to the covenantsand easements set forth herein, all of which are hereby declared to be for the purpose of enhancing and protecting the overall value and utility of the Air Rights Parcel, and its respective successorsand permitted assigns. The covenants and easements set forth in this Amended Declaration shall constitute covenants and easements that shall run with the land and shall be binding upon the Parties, their successors and permitted assigns, and all parties having or acquiring any right, title or interest in or to the Property and each and either of the Parcels comprising the Property, and their successors and permitted assigns.
1. Definitions. The following terms shall have the following meanings when used herein:
(a) Air Space Parcel Owner. "Air Space Parcel Owner" shall mean the person or entity who at any time owns the Air Space Parcel, including, initially, Wareham, and, thereafter,any subsequent transferee of title to the Air Space Parcel. (b) Station Parcel Owner. "Station Parcel Owner" shall mean the person or entity who at any time owns the Station Area and the Station Building, including, initially, Amtrak, and, thereafter, any subsequent transferee of title to the Station Parcel. (c) Owner. "Owner" shall mean each of the Air Space Parcel Owner and the Station Parcel Owner.
2. Declaration and Grant of Easements. Amtrak, as owner of the Station Parcel, hereby declares, grants and establishes the perpetual easements described below (the "Easements"). Such Easements shall burden the Station Parcel, as the sement tenement, and shall benefit and be appurtenant to the Air Space Parcel, as the dominant tenement and are subject to00498\062\8207167.vl3 compliance with all then-existing Amtrak engineering standards, processes, procedures and requirements.
(a) Support Structures. As long as such improvements (i) do not unreasonably affect or interfere with the ownership ofand/or Amtrak's or any successor transportation operator's use and/or operations on, under, across, above or within the Station Parcel, (ii) are only made on, in, under, across, above, adjacent to or within the Station Parcel and no improvements may unreasonably impact or effect the ownership, use or operation of the Station Building, Amtrak declares, grants and establishes a perpetual easement to and for the benefit of the Air Space Parcelconstituting the right to obtain from and through the Station Parcel continuous support for anyimprovements that may hereafter be constructed within the Air Space Parcel ("Air Space Parcel Improvements"), including, without limitation, the right to install, erect, maintain, repair, remove, replace and relocate support columns or similar structures and associated above grade and below grade footings and foundations for the support of such Air Space Parcel Improvements (the "Support Structures"); subject, however, to the following requirements: (i) such Support Structures shall be subject to Amtrak's prior review and approval, which approval shall not be unreasonably withheld, conditioned or delayed so long as such Support Structures do not unreasonably affect or interfere with Amtrak's or any successor transportation operator's operations on, in, under, across, adjacent, above or within the Station Parcel and (ii) such Support Structures may only be installed at locations on and within the areas of the Station Parcel and in such manner as will not unreasonably interfere with the Station Parcel Owner's use, access and/or operations conducted on, in, under, across, above, adjacent to or withm the Station Parcel, including the Station Building.
(b) Access. Amtrak declares, grants and establishes a perpetual easement to and for the benefit of the Air Space Parcel constituting the right to obtain access across and through the Station Parcel to and from the Air Space Parcel and any Air Space Parcel Improvements constructed or being constructed therein, to the extent such access does not interfere with Amtrak'sownership or use of the Station Building or operations conducted on the Station Parcel. Suchaccess right does not include the right to construct elevators, stairs and escalators providing vertical transportation from the ground level of the Station Parcel to and from the Air Space Parcel ("Access Improvements") unless the plans for such Access Improvements are reviewed and approved by Amtrak, in Amtrak's reasonable judgment, and do not unreasonably interfere with Amtrak's ownership, use and/or operations on, in, under, across, above, adjacent to or within the Station Parcel. Amtrak is under no obligation to relocate, modify or curtail its operations or any improvements on the Station Parcel.
(c) Utility Facilities. Amtrak declares, grants and establishes a perpetual easement to and for the benefit of the Air Space Parcel constituting the right to install, use, maintain, repair and replace all lines, equipment and facilities for utility service ("UtilityFacilities") over, across, under and within the Station Parcel, both laterally and vertically, as mayhereafter be required from time to time to provide utility services to any Air Space ParcelImprovements from adjacent public or private streets and/or parcels, as long as such Utility Facilities do not interfere with Amtrak's ownership, use and/or operations on, in, under, across, above, adjacent to or within the Station Parcel.
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3. Ancillary Rights and Obligations. Subject to Amtrak's prior review and approval of all plans and schedules, in Amtrak's reasonable judgment, and the Air Space Parcel Owner'scompliance with all then-existing Amtrak requirements and processes for access to Amtrak owned property, the easement rights declared, granted and established herein shall include, and the Air Space Parcel Owner and its agents, employees and contractors shall have, such incidental reasonable rights of access over and across the Station Parel (and not the Station Building) with workers, equipment and materials as may reasonably be required to undertake and perform suchwork as may be contemplated by the declaration, grant and establishment of any such easementrights, as long as such work and equipment does not interfere with Amtrak's ownership, use and/or operations on, in, under, across, above, adjacent to or within the Station Parcel. In undertaking and performing any such work, the Air Space Parcel Owner shall, and shall cause its contractors to, perform such work pursuant to Amtrak's then-existing requirements and processes for access and working on or adjacent to Amtrak owned property, as well as any and all applicable laws as well as all governmental permits and approvals required therefor and in a good and workmanlikemanner, and Wareham and Amtrak shall confer regarding the manner in which any such work shall be undertaken in order to avoid or mitigate any impact or potential impact to Amtrak's ownership of, use of and operations of or on, in, under, across, above, adjacent to or within the Station Parcel; and the Air Space Parcel Owner shall be responsible for all repair of any damage to the Station Parcel, including the Station Building, that may be caused by any such work, including the restoration of any improvements or landscaping disturbed in the course of installing, maintaining, repairing or replacing any Air Space Parcel Improvements, Support Structures, Access Improvements and/or Utility Facilities.
4. Allocation of Development Rights. As of the date of execution of this Amended Declaration, the current allowable development height for the Property as provided in the City ofEmeryville General Plan is 50 feet as of right and 100 feet with a discretionary bonus.
Accordingly, for purposes of this Amended Declaration, Wareham is assuming that 75 feet is the probable height of the overall development of the Property. The height of the Station Building is approximately 36 feet, or approximately 48% of the probable development height of the Property.
Regardless of whether the height limit for the Property as provided in the City of Emeryville General Plan has been amended, or whether the height limit is applied based on an "as of right" basis or pursuant to a discretionary bonus, Declarant hereby specifies that the allowable density of development in any future development application for the Property or either Parcel shall beassigned 48% to the Station Parcel interest and 52% to the Air Space Parcel interest.
5. Insurance.
(a) During the time that any construction work related to any Air Space Parcel Improvements occurs, the Air Space Parcel Owner shall require it's contractors who perform work to sign Amtrak's then-current "Temporary Pennit to Enter Upon Property" and to comply with the insurance provisions within the then-current version of Amtrak's "Temporary Permit to Enter Upon Property" form prior to commencing such work.
(b) Air Space Parcel Owner Insurance. Following the completion of the construction of any Air Space Parcel Improvements, the Air Space Parcel Owner shall maintain the following insurance:
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(i) Commercial General Liability ("CGL") Insurance issued on an occurrence basis covering the liability of Air Space Parcel Owner with respect to its operations on, or occupancy and use of the Air Space Parcel and all obligations assumed by Air Space Parcel Owner under this Agreement. Products-completed operations, independent contractors, contractual, and personal injury/advertising liability coverage, are to be included with thecontractual exclusion related to construction/demolition activity within fifty (50) feet of therailroad and any X-C-U exclusions deleted. The policy will name National Railroad PassengerCorporation and all commuter agencies and railroads that operate over the property or tracks atissue as additional insureds and include a full severability of interest clause. In addition, the policy will include an ISO endorsement form CG 24 17 10 01 or its equivalent providing contractual liability coverage for the railroads listed as additional insureds. Coverage for such additionalinsureds will be primary and non-contributory as respects any other insurance the additional insureds carry. Coverage under this policy, or policies, will have limits of liability of not less than Ten Million Dollars ($10,000,000) each occurrence and Twenty Million Dollars ($20,000,000) in the aggregate with a combined single limit for bodily injury (including disease or death), personal injury, and property damage (including loss of use) liability. This requirement may be satisfied by a combination of a primary CGL policy and following-form Excess or Umbrella liability insurance policy(ies) which equal the total limits required.
(ii) Workers Compensation Insurance. A policy complying with the requirements of the statutes ofthejurisdiction(s) in which the Air Space Parcel is located, covering all employees of the Air Space Parcel Owner and its contractors. Employer's Liability coverage with limits of not less than One Million Dollars ($1,000,000.00) each accident or illness will be included.
(iii) Automobile Liability Insurance issued to and covering the liability of Air Space Parcel Owner arising out of the use of all owned, non-owned, hired, rented or leased vehicles which bear, or are required to bear, license plates according to the laws of the jurisdiction in which they are to be operated. The policy shall name Amtrak as an additional insured with respect to Air Space Parcel Owner's rights, responsibilities and operations in connection with this Agreement. Coverage under this policy shall have limits of liability of not less than One MillionDollars ($1,000,000.00) per occurrence, combined single limit, for bodily injury and propertydamage liability. (c) Property Insurance. Each party shall maintain property insurance covering all buildings, contents, machinery, fixtures, equipment improvements and betterments on the Station Parcel and in the Air Space Parcel, as the case may be, against loss or damage by fire and such other hazards as are currently embraced in the standard extended coverage endorsement, in an amount not less than one hundred percent (100%) of the full replacement cost of such property.
Each party waives any claim for loss against the other party to the extent that such loss is coveredby such party's property insurance policy and each party's property insurance shall contain a waiver of subrogation against the other party with respect to any loss covered by the insuring party's property insurance policy.
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6. Indemnity.
(a) To the full extent permitted by law, the Air Space Parcel Owner shall indemnify, save harmless and defend Amtrak, its officers, directors, employees, agents,subsidiaries and contractors (collectively, "Indemnified Parties") irrespective of ordinary negligence (but not gross negligence) of Amtrak or the Indemnified Parties from and against all losses, damages, liabilities, suits, claims, demands, judgments, costs, interest and expenses (including, without limitation, reasonable attorneys' fees) (collectively "losses and damages"), that would not have arisen or been incurred but for (a) this Amended Declaration, (b) the use ofthe Station Parcel by Wareham, its officers, directors, employees, contractors, subcontractors, licensees, agents, servants, guests, or invitees (collectively, "Wareham Parties"), (iii) the proximity of the Air Space Parcel to any Amtrak operations or operations by any other railroadusing Amtrak's property, (e) failure by Wareham or any of its contractors to comply with any provision of this Amended Declaration or (v) any combination of the foregoing (collectively, the "Triggering Events"); whether such losses and damages be suffered or sustained by Amtrakdirectly or by its employees, officers, agents, servants, contractors, or licensees, or by any other person or entity, who may seek to hold Amtrak liable therefore. In addition, Air Space Parcel Owner agrees that it will cause each of its contractors to enter into an indemnity agreement in favor ofAmtrak prior to such contractor entering upon the Station Parcel, which indemnity agreement shall be in form and substance approved by Amtrak, such approval not to be unreasonably withheld.
(b) Personal or Property Damage. Subject to the terms of Section 5(c), Air Space Parcel Owner shall defend, indemnify and save harmless the Indemnified Parties and third parties (to the extent that Amtrak is obligated to defend, indemnify or save harmless such third parties), irrespective of negligence or fault of the Indemnified Parties or such third parties, for all losses and damages which any or all of them may hereafter incur, be responsible for, or pay as a result of injury, death, disease, or occupational disease to any person and for damage (including loss of use) to or loss of any property that would not have occurred or would not have been incurred but for this Amended Declaration.
(c) Expenditures Reimbursed. If Amtrak or any other Indemnified Parties are required to make any expenditures or incur any obligations for the payment of money in connection with this Section of this Amended Declaration, including but not limited to attorneys' fees for instituting, prosecuting or defending any action or proceedings, such sums paid, obligationsincurred, and any costs associated therewith, together with interest thereon at the highest rate allowed by law will be deemed to be additional consideration due hereunder and Air Space ParcelOwner shall pay such to Amtrak within fifteen (15) days ofAmtrak rendering an invoice to Air Space Parcel Owner.
(d) Survival. The provisions of this Section will survive the expiration or termination of this Agreement with respect to events occurring or liabilities arising prior to such expiration or termination.
7. Waivers, Consents, and Modifications. Waivers and consents respecting this Amended Declaration shall be binding only if in writing and signed by the Party against whom such waiver or consent is sought to be enforced. This Amended Declaration may be amended, m 00498\062\8207167.vl3
whole or in part, at any time or from time to time, only by an instrument executed by the Parties and recorded in the Official Records ofAlameda County, California.
8. Estoppel Certificates. Each Party (the "Certifying Owner") shall at any time and from time to time upon not less than thirty (30) days' prior written notice from the other Party (the"Requesting Owner"), execute, acknowledge and deliver to the Requesting Owner a statement in writing, as requested by the Requesting Owner, certifying: (a) that this Amended Declaration and the rights created hereby are unmodified and to the knowledge of the Certifying Owner, is in full force and effect (or, if modified, adequately identifying such modification and certifying that this Amended Declaration and the rights as so modified are in full force and effect), and (b) whether or not to the knowledge of the Certifying Owner there is any default by the Requesting Owner in the performance of any term, covenant, condition, provision or agreement contained in this Amended Declaration and further whether or not there are any setoffs, defenses or counterclaims against enforcement of the obligations to be performed under this Amended Declaration and, if there are, specifying each such material default, setoff, defense or counterclaim. Any such statement may be relied upon by any prospective purchaser, assignee, lessor, lessee or mortgagee of the Requesting Owner.
9. Run with the Land. The easements, agreements, covenants, conditions and restrictions herein shall be deemed easements, agreements, covenants, conditions and restrictions running with the land that is burdened and benefited by such easements, agreements, covenants, conditions and restrictions and they shall benefit or bind, as applicable, the Owner of such landand its respective successors, permitted assigns and legal representatives. Each of the easements, agreements, covenants, conditions and restrictions contained herein shall be appurtenant to theland thus affected and shall not be separated or separately conveyed, assigned, leased, rented,encumbered, hypothecated, occupied or used, and any purported attempt to do so in violation of this Amended Declaration shall be void. Such easements, agreements, covenants, conditions andrestrictions shall automatically accompany the conveyance of any part of the land affected hereby,even though the easements, agreements, covenants, conditions and restrictions are not referred toin the instrument of conveyance. Effective upon the conveyance of an Owner's entire interest ina Parcel, such Owner shall thereupon be released and discharged from any and all obligations inconnection with such Parcel that arise under this Amended Declaration after the effective date ofsuch conveyance (but such Owner shall remain liable for all such obligations arising under this Amended Declaration prior to the date of such conveyance), and upon such conveyance of a Parcel,the grantee thereof shall assume in writing the obligations in connection with such Parcel that arise under this Amended Declaration after the effective date of such conveyance.
10. Mortgagee Provisions. This Amended Declaration shall at all times be superior to the lien of any deed of trust, mortgage, security agreement or other monetary lien or encumbrancethat may exist against any of the Parcels at any time after, the date of this Amended Declaration.Each Party, upon the written request of the other Party, shall obtain a written recordable agreement from its lenders and other holders of such liens, if any, whereby such lien holders agree to subordinate their interests under such liens to the rights and interests of the Parties created by this Amended Declaration. No breach of any of the provisions of this Amended Declaration nor the enforcement thereof shall defeat or render invalid the lien of any mortgage, deed of trust or othersecurity interest, but all of the provisions of this Amended Declaration shall be binding upon and effective against any person whose title is derived through foreclosure or otherwise. 00498\062\8207167.vl3
11. Event of Default; Remedies. It shall be a breach of an Owner's obligations under this Amended Declaration and shall constitute a default hereunder ("Event of Default") if an Owner does not cure any breach of this Amended Declaration within thirty (30) days after receipt of notice from the other Owner; provided, however, that if such Owner has commenced to curesuch default within such cure period and is diligently and continuously prosecuting such cure, such cure period shall be extended for a period as is reasonably necessary to allow a cure. Withoutlimiting any other provision herein, upon the occurrence of an Event of Default, the non-defaultingOwner may: (i) bring any proceeding in the nature of specific performance injunction or other equitable remedy to enforce defaulting Owner's obligations hereunder, it being acknowledged thatdamages at law may be an inadequate remedy for a default or threatened breach of this Amended Declaration; (ii) bring any action to enforce this Amended Declaration; and/or (iii) take or initiate such other action and enforce such other remedies as may be available under this Amended Declaration, at law, in equity or otherwise, including, without limitation, the right to damages. Nobreach of any provision of this Amended Declaration shall entitle any Owner to terminate or cancel this Amended Declaration or the easements, agreements or rights set forth herein, but this limitation shall not affect in any manner any other rights or remedies that an Owner may have by reason of any such breach.
12. No Public Dedication. This Amended Declaration is not intended as and does not create or make any offer to dedicate any easements or other rights to the public. Except asspecifically set forth in this Amended Declaration, no rights, privileges or immunities of anyOwner shall inure to the benefit of any third-party, nor shall any third-party be deemed to be a beneficiary of any of the provisions contained in this Amended Declaration.
13. General Provi sions .
(a) Severability. The determination that any provision hereof may be void, invalid, illegal or unenforceable shall not impair any other provisions hereof and all such other provisions of this Amended Declaration shall remain in full force and effect. The unenforceability, invalidity or illegality of any provision of this Amended Declaration under particular circumstances shall not render unenforceable, invalid or illegal other provisions of this Amended Declaration or the same provisions under other circumstances. (b) Counterparts. This Amended Declaration may be executed in several counterparts, each of which shall constitute an original, but all of which together shall constitute one and the same Amended Declaration.
(c) Governing Law. This Amended Declaration shall be construed and interpreted in accordance with the laws of the State of California and adjudicated in the federal courts.
(d) No Joint Venture. The provisions of this Amended Declaration are not intended to create, nor shall they be in any way interpreted or construed to create a joint venture, partnership or any other similar relationship between the Parties.00498\062\8207167.vl3 (e) Further Assurances. The Owners shall from time to time execute such other documents and perform such other acts as may be necessary or appropriate to carry out the purposes of this Amended Declaration.
(f) Recordation. This Amended Declaration shall be recorded in the Official Records ofAlameda County, California.
IN WITNESS WHEREOF, the Wareham and Amtrak have each executed this Amended Declaration as of the day and year first above written.
WAREHAM: WAREHAM DEVELOPMENT
CORPORATION,
a California corporation
By:
Its:
AMTRAK: NATIONAL RAILROAD PASSENGER
CORPORATION
By:
Its:
00498\062\8207167.vl3
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 _n___ _ )
/ . . ,
On !'.; ',;.'.. f . _, 2024, before me, ' ' .-. ; • . .:.. _/ < ,'^ •• • ' _, Notary Public, (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 samein 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 theforegoing paragraph is true and correct.
WITNESS my hand and official seal.
SAHDRA L. SCMAEFFER
Notary Public - California
Marin County
Signature ^/- ' —" ./ (Seal) 1^^^ commtssion 02418810 _ f S^My Comm. Expfre* Oct 26, 2026
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.
COMMONWEALTH OF PENNSYLVANIA )COUNTY OF PHILADELPHIA )
On _, 2024, before me, _, Notary Public, (insert name and title of the officer) personally appearedwho 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 samein 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 Commonwealth of Pennsylvania that the foregoing paragraph is true and correct.WITNESS my hand and official seal.
Signature_ (Seal)
Exhibit A
LEGAL DESCRIPTION OF STATION PARCEL
All of that certain real property located in the City ofEmeryville, County ofAlameda, State of California, described as follows:
Parcel 1, as shown on Parcel Map 10899, filed October 24, 2018, in Book 340 of Maps, Pages 98 and 99, Alameda County Records.
APN: 049-1325-108
A-l
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Exhibit B
LEGAL DESCRIPTION OF AIR SPACE PARCEL
All of that certain real property located in the City ofEmeryville, County ofAlameda, State of California, described as follows:
Parcel 2, as shown on Parcel Map 10899, filed October 24, 2018, in Book 340 of Maps, Pages 98 and 99, Alameda County Records.
APN: 049-1325-109
B-l
00498\062\8207167.vl3