PROPERTY CONVEYANCE AGREEMENT
(Wareham to City)
Station Property
This Property Conveyance Agreement (the "Agreement") is entered into as of 2024, by and between Wareham Development Corporation, a California corporation("Wareham"), and the City of Emeryville, a municipal corporation (the "City"), with reference to the following facts and purposes:
RECITALS
A. The subject of this Agreement is that certain parcel of real property located in Emeryville, California, more particularly described in Exhibit A attached hereto (the "StationProperty") and the intennodal transportation station facility situated thereon (the "StationImprovements", and together with the Station Property, the "Property"). Previously, the Station Property was part of a larger parcel owned and utilized by Chevron U.S.A., Inc. ("Chevron" and said larger parcel being referred to as the "Chevron Property").
B. The former Emeryville Redevelopment Agency (the "Former Agency") and Wareham entered into that certain Participation Agreement dated March 2, 1993 ("Participation Agreement"), pursuant to which (i) the Former Agency acquired the Chevron Property from Chevron pursuant to, and to effect a part of, the Redevelopment Plan for the Emeryville Redevelopment Project (Ord. No. 76-04, July 27,1976, as amended); (ii) the Former Agency conveyed the Station Property to Wareham for the purpose of Wareham's construction of the Station Improvements; and (iii) Wareham leased the Station Property and Station Improvements back to the Former Agency pursuant to a Lease dated March 2, 1993 (the "Wareham/RDA Lease"). The Wareham/RDA Lease was for a term of 25 years following the completion of the Station Improvements.
C. The stated term of the Wareham/RDA Lease has expired. In accordance with the terms of the Wareham/RDA Lease, Wareham was to transfer the Station Property with the Station Improvements to the Former Agency for $1.00 upon expiration of the Wareham/RDA Lease. However, the Former Agency was dissolved by operation of law effective February 1,2012 and its successor, the City of Emeryville as Successor Agency to the Emeryville Redevelopment Agency (the "Successor Agency") is not empowered to take title to the Property pursuant to AB 26 IX adopted by the California Legislature in 2011 addmg Parts 1.85 and 1.9 to Division 24 of the Health and Safety Codes dissolving redevelopment agencies in California.
D. Further, the City and the National Railroad Passenger Corporation ("Amtrak") entered into that certain Amended And Restated Passenger Station Lease/Purchase Agreement dated January 19, 2000 (the "Station Sublease"), which superseded that certain Passenger Station Lease/Purchase dated October 27, 1992 pursuant to which Amtrak subleased and 1828\22\3189417.3
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Exhibit A
Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 operated the Property as provided for in the Participation Agreement. The stated term of the Station Sublease has expired although Amtrak has continued to occupy the Station Property.
E. Pursuant to the Wareham/RDA Lease, the Successor Agency may assign its interest in the Wareham/RDA Lease subject to the prior written consent of Wareham. The Successor Agency, pursuant to Resolution No. SA-03-22 approved the assignment of the Wareham/RDA Lease to the City, which assignment was approved by the County of Alameda Countywide Oversight Board pursuant to Resolution No. OB 2022-05 and the California Department of Finance on May 2, 2022.
F. The Successor Agency and the City have entered into that certain Property Conveyance and Assignment Agreement whereby the Successor Agency has assigned to the Cityany and all rights and obligations the Successor Agency has pursuant to the Wareham/RDA Lease, which assignment was consented to by Wareham.
G. In accordance with the terms of the Wareham/RDA Lease, Wareham and the City are entering into this Conveyance Agreement to provide for the conveyance of the Property to the City in accordance with the terms of the Wareham/RDA Lease.
H. Pursuant to Section 15061(b)(3) of the CEQA Guidelines, this Agreement is exempt from the requirements of CEQA because the action taken pursuant to this Agreement is to preserve the status quo and use of the Property will not change, or otherwise be modified, following the conveyance set forth in this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, Wareham and the City agree as follows:
Section 1. Conveyance. For the consideration of one dollar ($1.00), which shall be paid by the City to Wareham at the close of escrow, and as provided in the Wareham/RDA Lease, subject to the terms and conditions set forth below, Wareham agrees to convey, and the City agrees to accept conveyance of, the Property (i.e. the Station Property and the Station Improvements located thereon). The City acknowledges that the Property does not include theair rights parcel that was created by Parcel Map 10899, recorded in Book 340 of Maps, at pages 98-99 as Document No. 2018206203 of the Official Records of the County ofAlameda ("Air Rights Parcel").
Section 2. Easement Agreements. The City, in order to further the purposes of the Participation Agreement and the Redevelopment Plan for the Emery ville Redevelopment Project agrees to grant to Wareham or affiliates of Wareham the following easements (collectively, the "Easements"):
(a) Encroachment Easement. An encroachment easement substantially in the form of Exhibit B attached hereto ("Encroachment Easement") granting Emery Station West, LLC, an affiliate of Wareham rights to encroach into the airspace over certain property owned by 1828\22\3189417.6
Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 the City and more particularly described as Platform Parcels 2 and 3 in the Encroachment Easement. The Encroachment Easement shall be executed and recorded promptly following themutual execution of this Agreement. (b) 59th Street Extension Easements.
(i) Access Easement. An access easement substantially in the form of Exhibit C attached hereto ("Access Easement") granting Wareham or an affiliate of Wareham access rights over that certain property owned by the City or to be acquired by the City consisting of a 35 foot wide strip of land in the vicinity of 59th Street that runs from the westernedge of Horton Street to the railroad tracks to the west (the "59th Street Extension") for purposes of providing pedestrian and bicycle access for the Air Rights Parcel across the 59th Street Extension.
(ii) Utility Easement. A utility easement substantially in the form of Exhibit D attached hereto ("Utility Easement" and together with the Access Easement, the "59th Street Extension Easements") granting Wareham or an affiliate of Wareham rights to install utilities to serve the Air Rights Parcel within and below the 59th Street Extension.
Section 3. Method of Conveyance. As soon as practicable after the date of this Agreement: (i) Wareham shall convey the Property to the City by grant deed (the "GrantDeed"), substantially in the form of the attached Exhibit E, to be recorded in the official recordsof the County Recorder of the County of Alameda, and (ii) the City and Wareham shall execute the 59th Street Extension Easements substantially in the forms attached hereto as Exhibits C and D, to be recorded in the official records of the County Recorder of the County ofAlameda. The date of execution and recordation of the Grant Deed is referred to in this Agreement as the "Conveyance Date." The City shall pay all costs of conveyance and recording, if any, of the Grant Deed and the Easements. Notwithstanding the above, the City shall not have anyobligation to accept conveyance of the Property unless and until Amtrak is prepared to acceptimmediate conveyance of the Property from the City through a simultaneous escrow. If for any reason Amtrak fails to accept conveyance of the Property from the City on or before December 31, 2024, this Agreement shall terminate, Wareham shall retain ownership of the Property and the parties shall have no further obligations to each other except for those provisions of this Agreement that survive termination, provided, however, the Easements shall be executed andrecorded as provided for above notwithstanding that the conveyance of the Property failed to occur.
Unless the parties agree otherwise, the City and Wareham shall establish an escrow with a mutually acceptable title company (the "Title Company") to effectuate the conveyance of the Property and the granting of the Easements. Wareham and the City shall execute any and all documents reasonably necessary or appropriate to close the conveyance of the Property pursuant to the terms of this Agreement.
Section 4. Condition of Title; Title Policy. Wareham makes no representation or warranty of any kind or nature whatsoever with respect to the state of title to the Property. The 1828\22\3189417.6
Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 City may, at its election, and at its sole cost and expense, obtain a policy of title insurance with respect to the conveyance of the Property to the City by Wareham. Wareham shall cooperate with the City if the City elects to obtain any such title insurance; provided, however, that Wareham shall have no obligation to remove or cause the removal of any exception to title and shall not be required to incur any expense or undertake any obligation or liability whatsoever in connection with the state of title to the Property or issuance of any policy of title insurance.
In the event that Wareham has paid property taxes on the Property in advance for any period after the Conveyance Date, such property tax payments shall be prorated and the City shall pay to Wareham the prorated portion of such property taxes for the period following theConveyance Date at the Close of Escrow. In the event that any such property taxes are due and unpaid as of the Conveyance Date, Wareham shall convey, and the City shall accept conveyance of, the Property subject to such outstanding property taxes and Wareham shall have no obligation or liability with respect to the payment thereof.
Section 5. Condition of Property. For purposes of fulfillment of the intent of Health and Safety Code Section 25359.7, and in recognition of the fact that (i) the Former Agency had acquired the Chevron Property and thereafter conveyed the Station Property portion thereof to Wareham, and (ii) under the Wareham/RDA Lease and the Station Sublease, the Former Agency as tenant and Amtrak as subtenant have been in possession of the Property since the completion of the Station Improvements, the City and Wareham acknowledge and agree that each of them has the same knowledge as the other regarding the environmental condition of the Property andthat each has provided to the other any information in its possession regarding the environmental condition of the Property, including the existence and/or release of hazardous substances on or beneath the Property, and, therefore, the notice requirement of Health and Safety Code Section 25359.7, whether as applicable to Wareham as the current owner of the Property, or as applicable to the Former Agency or the Successor Agency, as the tenant of the Property, has been fully satisfied.
Section 6. "As Is" Conveyance. The City acknowledges and agrees that the Property including the Station Improvements shall be conveyed by Wareham and accepted by the City on an "AS-IS, WHERE-IS AND WITH ALL FAULTS" basis in its current physical condition, with no warranties, express or implied, as to the physical condition thereof, the presence or absence of any latent or patent condition thereon or therein, including, without limitation, any HazardousMaterials (as such term is defined in the Lease) thereunder, thereon or therein, and any other matters affecting the Property.
Section 7. Operation of the Property prior to Conveyance. The Parties acknowledge (i) that the stated terms of both the Wareham/RDA Lease and the Station Sublease have expired and (ii) that Amtrak has continuously remained in possession of and operated the Property since the expiration of the stated term of the Station Sublease.
Section 8. Release of Claims. The Parties, each on its own behalf and on behalf of anyone claiming by, through or under either Party hereby waives its right to recover from and fully and irrevocably releases the other Party as well as the Successor Agency and each of their respective directors, officers, employees, and agents from any and all claims that such Party 1828\22\3189417.6
Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 currently has knowledge of against the other Party or the Successor Agency for any costs, loss, liability, damage, expenses, demand, action or cause of action arising from or related to the possession of the Property by Amtrak.
Section 9. Representations and Warranties. Wareham represents, warrants and covenants to the City, as of the date of this Agreement, as follows:
(a) No Condemnation. To Wareham's current actual knowledge, there is no pending or threatened condemnation or similar proceeding affecting the Property, or any portionthereof, nor does Wareham have any knowledge that any such action is contemplated. (b) No Proceedings. Wareham has not received written notice of any pending legal actions, suits, or other legal or administrative proceedings challenging Wareham's title to the Property.
(c) No Other Conveyance. While this Agreement remains in effect, Wareham shall not convey or accept any offer to convey the Property or any portion of the Property to any third-party (other than to an affiliate of Wareham that accepts the terms of this Agreement) nor shall Wareham record an encumbrance against the Property, without in each case the prior written consent of the City, which may be withheld in the City's reasonable discretion.
Section 10. No Brokers. Each party represents to the other that it has not had any contact or dealings regarding the Properties, or any communication in connection with the subject matter of this transaction, through any real estate broker or other person who can claim a right to a commission or finder's fee. If any broker or finder makes a claim for a commission or finder's fee based upon a contact, dealings, or communications, the party through whom the broker or finder makes this claim shall indemnify, defend with counsel of the indemnified party'schoice, and hold the indemnified party harmless from all expense, loss, damage and claims,including the indemnified party's attorneys' fees, if necessary, arising out of the broker's or finder's claim.
Section 11. General Provisions.
(a) Headings. The title and headings of the various sections hereof are intended for means of reference and are not intended to place any construction on the provisions hereof.
(b) Invalidity. If any provision of this Agreement shall be invalid or unenforceable the remaining provisions shall not be affected thereby, and every provision hereof shall be valid and enforceable to the fullest extent permitted by law. (c) Attorneys' Fees. In the event of any litigation between the parties hereto to enforce any of the provisions of this Agreement, the unsuccessful party to such litigation agrees to pay to the successful party all costs and expenses, including reasonable attorneys' feesincurred by the successful party, all of which may be included as part of the judgment renderedin such litigation. 1828\22\3189417.6
Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 (d) Amendments; Governing Law. No provision of this Agreement may be amended except by an agreement in writing signed by the parties hereto or their respectivesuccessors in interest. This Agreement shall be governed by and constmed in accordance with the laws of the State of California.
(e) Successors. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto. (f) Time of the Essence. Time is of the essence in this Agreement. (g) Exhibits. All exhibits attached hereto are incorporated in this Agreement by this reference.
(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed to be an original andall of which counterparts taken together will constitute one and the same instrument Remainder of Page Left Intentionally Blank
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 LN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
WAREHAM DEVELOPMENT CORPORATION,
a California corporation
By:
Name: Richard K.
Its: President
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CITY OF EMERYVILLE, a California municipal
corporation
By: _____________________________
Adam Politzer, Interim City Manager
APPROVED AS TO FORM:
By: ________________________
John Kennedy, City Attorney
ATTEST:
____________________________
Lorrayne Leong, Deputy City Clerk
Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7
EXHIBIT A
DESCRIPTION OF THE STATION PROPERTY
The land referred to is situated in the County ofAlameda, City ofEmeryville, State of California, and is described as follows:
PARCEL ONE: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 PARCEL TWO:A non-exclusive easement appurtenant to Parcel One above for storm drain and incidentalpurposes as contained in that certain Document entitled "Easements and Agreement RegardingUtilization of Storm Drain Improvements", recorded June 22, 2016 in Series Number2016156533, as more particularly described therein.
PARCEL THREE:A non-exclusive easement for vehicular access and utility lines as set forth in the Documentrecorded April 28, 2021, as Document No. 2021166416 of Official Records.
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EXHIBIT B
ENCROACHMENT EASEMENT
B-l
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 Recording requested by, and when
recorded return to:Wareham Development Corporation
1120 Nye Street, Suite 400
San Rafael, CA 94901-2946
Attn: Richard K. Robbins
Space Above This Line For Recorder's Use
AGREEMENT FOR ENCROACHMENT EASEMENT
THIS AGREEMENT FOR ENCROACHMENT EASEMENT (the "Agreement") is entered into as of _ _, 2024, by and between the City of Emeryville, a California municipal corporation (the "City"), as grantor, and Emery Station West, LLC, a California limited liability company ("ES West"), as grantee. City and ES West are referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. City Parcels. City owns a strip of land in the vicmity of 59th Street that mns from the western edge ofHorton Street to within approximately 8.75 feet of the railroad tracks to thewest, which parcel is more particularly described on Exhibit A-l attached hereto (the "City 59th Street Parcel"). Located on the City 59th Street Parcel is a tower structure that provides access to the east side of an elevated pedestrian bridge that spans said railroad tracks (the "PedestrianBridge Access Tower"). City also owns: (i) a narrow parcel that is bounded by the City 59th Street Parcel and Platform Parcel 3 (defined below) to the south, the railroad tracks to the west and the ES West Parcel (defined below) to the east, which parcel is more particularly described onExhibit A-2 attached hereto ("Platform Parcel 2"), and (ii) a rectangular parcel (approx.
8.74V8.83' x 35'; 307 sq. ft.) that lies between the City 59th Street Parcel and the railroad tracks to the west, which parcel is more particularly described on Exhibit A-3 attached hereto ("Platform Parcel 3"). Said Platform Parcels 2 and 3 serve as part of the loading platform for the railroad tracks.
B. ES West Parcel. ES West owns the parcel known as 5959 Norton Street, which parcel is more particularly described on Exhibit B attached hereto (the "ES West Parcel"). The ES West Parcel contains a nine (9) story building comprised of a two (2) story parking/transit podium and a seven (7) story office/medical/laboratory building (the "ES West Building"). In addition, a walkway from the terrace on the roof of the parking/transit podium of the ES West Building ("Terrace") connects to the Pedestrian Bridge Access Tower (the "Walkway"), whichWalkway passes within a small portion of the airspace at the western end of the City 59th Street Parcel, the southeast comer of Platform Parcel 2, and the eastern edge of Platform Parcel 3.
C. Site Map. The City 59th Street Parcel, Platform Parcel 2, Platform Parcel 3 and the ES West Parcel are shown on the site map attached as Exhibit C hereto (the "Site IViap"). 00498\062\8868081.v7
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 D. Encroachment Easement. The Parties are entering into this Agreement to provide for the right ofES West to maintain the encroachment of the Walkway into the airspace of the City 59th Street Parcel, Platform Parcel 2 and Platfonn Parcel 3 to the extent required to permit the Walkway to extend from the Terrace to the Pedestrian Bridge Access Tower.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the Parties agree as follows:
1. Grant of Easement. City hereby grants to ES West, as an appurtenance to the ES West Parcel, an easement permitting the encroachment of the Walkway into the airspace of eachof the City 59th Street Parcel, Platform Parcel 2 and Platform Parcel 3 to the extent required to permit the Walkway, as constructed, to extend from the Terrace to the Pedestrian Bridge Access Tower. The area of such encroachments is shown in the site detail shown on the Site Map.
2. Indemnity and Insurance. ES West shall indemnify, defend and hold harmless City and its officers, officials, directors, members, employees, successors and assigns from and againstany and all third party suits or actions (at law or in equity), administrative proceedings, claims,liabilities, obligations, losses, damages, fines, penalties, costs and expenses (including, withoutlimitation, reasonable attorneys' fees and costs), including, but not limited to, bodily injury or death of any person or damage to property, to the extent arising out of or incurred as a consequenceof the negligence ofES West relating to any acts or omissions ofES West under this Agreement or any breach on the part of ES West hereunder or otherwise in any way related to the Walkwayexcept to the extent arising as a consequence of or relating to any acts or omissions of City. ES West shall maintain commercial general liability insurance insuring against claims on account ofbodily injury or death, personal injury, property damage, and contractual liability, including the indemnification provision described above. Such commercial general liability insurance shall be on an "occurrence" basis, with a limit of not less than $2,000,000 each occurrence and $5,000,000in the aggregate (inclusive of blanket, umbrella, and/or excess liability coverage), which coverageamounts shall be increased from time to time in consultation with the City and ES West's insuranceadvisors to address the impacts of inflation. Such insurance shall be primary and not contributory to that carried by City. ES West shall from time to time upon the written request of City provide such certificates of insurance as may reasonably be required to evidence such insurance coverage.
3. Waivers, Consents and Modifications. Waivers and consents respecting this Agreement shall be binding only if in writing and signed by the Party against whom such waiver or consent is sought to be enforced. This Agreement may be amended or modified only by a written instrument executed by the Parties.
4. Estoppel Certificates. Each Party (the "Certifying Party") shall at any time and from time to time upon not less than twenty (20) days' prior written notice from any other Party (the "Requesting Party"), execute, acknowledge and deliver to the Requesting Party a statementin writing, as requested by the Requesting Party, certifying: (a) that this Agreement and the rights created hereby are unmodified and in full force and effect (or, if modified, adequately identifyingsuch modification and certifying that this Agreement and the rights as so modified are in full force and effect), (b) whether or not to the knowledge of the Certifying Party there is any default by the Requesting Party in the performance of any term, covenant, condition, provision or agreement 00498\062\8868081.v7
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 contained in this Agreement and further whether or not there are any setoffs, defenses or counterclaims against enforcement of the obligations to be performed under this Agreement and,if there are, specifying each such material default, setoff, defense or counterclaim, and (c) such other matters as the Requesting Party may reasonably request in writing.
5. Run with the Land. The easement, rights and agreements set forth herein shall be deemed an easement, rights and agreements running with the land that is burdened and benefited by such easement, rights and agreements, and they shall benefit or bind, as applicable, the owner of such land and its respective successors, assigns and legal representatives. Each of the easement, rights and agreements contained herein shall be appurtenant to the land thus affected and shall notbe separated or separately conveyed or assigned. Effective upon the conveyance of the interest of the owner of the ES West Parcel, such prior owner shall thereupon be released and discharged from any and all obligations in connection with the ES West Parcel that arise under this Agreementafter the effective date of such conveyance (but such prior owner shall remain liable for all suchobligations arising under this Agreement prior to the date of such conveyance), and upon suchconveyance of the ES West Parcel, the grantee thereof shall assume in writing the obligations inconnection with the ES West Parcel that arise under this Agreement after the effective date of such conveyance.
6. Mortgaeee Provisions. The Agreement shall at all times be superior to the lien of any deed of trust, mortgage, security agreement or other monetary lien or encumbrance that may exist against any of the parcels referred to herein as of, or at any time after, the date of this Agreement. Each Party, upon the written request of the other Party, shall obtain a writtenrecordable agreement from its lenders and other holders of such liens, if any, whereby such lienholders agree to subordinate their interests under such liens to the rights and interests of the Parties created by this Agreement. No breach of any of the provisions of this Agreement nor theenforcement thereof shall defeat or render invalid the lien of any mortgage, deed of trust or other security interest, but all of the provisions of this Agreement shall be binding upon and effective against any person whose title is derived through foreclosure or otherwise.
7. Event of Default; Remedies. It shall be a breach of a Party's obligations under this Agreement and shall constitute a default hereunder ("Event of Default") if a Party does not cure any breach of this Agreement within thirty (30) days after receipt of notice from any other Party; provided, however, that if such Party has commenced to cure such 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. Without limiting any other provision herein, upon the occurrence of an Event of Default, the non-defaulting Party may: (i) bring any proceeding in the nature of specific performance, injunction or other equitable remedy to enforce defaulting Party's obligations hereunder, it being acknowledged that damages at law may be an inadequate remedy for a default or threatened breach of this Agreement; (ii) bring any action to enforce thisAgreement; and/or (iii) take or initiate such other action and enforce such other remedies as maybe available under this Agreement, at law, in equity or otherwise, including, without limitation, the right to damages. No breach of any provision of this Agreement shall entitle any Party toterminate or cancel this Agreement, but this limitation shall not affect in any manner any otherrights or remedies that a Party may have by reason of any such breach.00498\062\8868081.v7 1828\22\3805377.1
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8. No Public Dedication. This Agreement is not intended as and does not create or make any offer to dedicate any easements or other rights to the public. No rights, privileges or immunities of any Party 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 Agreement.
9. General Provisions.
(a) Severabilitv. 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 Agreement shall remain in full force and effect. The unenforceability, invalidity or illegality of any provision of this Agreement under particular circumstances shall not render unenforceable, invalid or illegal other provisions of this Agreement or the same provisions under other circumstances.
(b) Attorneys' Fees. In the event that any action is brought by a Party for the enforcement or declaration of any right or remedy in or under this Agreement or for the breach of any covenant or condition of this Agreement, each Party shall be responsible to cover their ownfees and costs incurred in connection with such action, including attorneys' fees and costs. (c) Governing Law; Venue. All matters of construction and interpretation with regard to this Agreement shall be governed by the laws of the State of California. Any action or proceeding brought by any Party to enforce or interpret the terms of this Agreement shall be brought in the Superior Court of the County ofAlameda.
(d) No Joint Venture. The provisions of this Agreement 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.
(e) Further Actions. Each Party agrees to execute and deliver all further documents and to take all further actions reasonably necessary or appropriate to effectuate the purposes of this Agreement.
(f) Recordation. Following the mutual execution by the Parties, this Agreement shall be recorded in the Official Records ofAlameda County, California.
Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed to be an original, and all of which counterparts taken together will constitute one and the same instrument. 00498\062\8868081.v7
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above.
CITY:
CITY OF EMERYVILLE,a California municipal corporation
By:
Paul Buddenhagen, City Manager
Attest:
By:
Lorrayne Leong, Deputy City Clerk
Approved as to form:
By:
John Kennedy, City Attorney
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ES WEST
EMERY STATION WEST, LLC,
a California limited liability company
By: ES WEST ASSOCIATES, LLC,
a California limited liability company,
Its: Managing Member
By: WAREHAM-NZL, LLC,
a California limited liability company,
Its: Manager
By:
Richard K. Robbins, Manager
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CONSENT OF ES WEST LENDER
Thrivent Financial for Lutherans, a Wisconsin corporation ("Beneficiary"), as administrativeagent for Thrivent Financial for Lutherans, a Wisconsin corporation, and Jackson National Life Insurance Company, a Michigan corporation ("Lenders"), is the holder and beneficiaryunder that certain Deed of Trust and Security Agreement and Fixture Financing Statement made by Emery Station West, LLC, a California limited liability company, as Grantor, to OldRepublic Title Insurance Company, as Tmstee, dated August 28, 2019, and filed of record on August 28, 2019, in the Official Records ofAlameda County, California as Instrument No. 2019168707 (the "Deed of Trust"), and said Beneficiary hereby consents to the execution and recordation of the Agreement to which this Consent is attached and hereby acknowledges and agrees that said Deed of Trust is hereby made subject and subordinate to the terms of said Agreement.
Date: , 2024ADMINISTRATIVE AGENT FORLENDERS:THRIVENT FINANCIAL FOR LUTHERANS,a Wisconsin corporation By:
Name:
Title:
STATE OF MINNESOTA )
) ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _ day of Thrivent Financial for Lutherans, a Wisconsin corporation, on behalf of said corporation. _, 2024, by _, a _ of Notary Public
My commission expires:
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 Exhibit A-1
City Parcel
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF EMERYVILLE, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEING A PORTION OF 59TH STREET AS SAID AS SHOWN ON THAT CERTAIN RECORD OF SURVEY NO. 1168, FILED FOR RECORD ON DECEMBER 13,1993, INBOOK 17 OF RECORDS OF SURVEYS AT PAGE 73, OFFICIAL RECORDS OF ALAMEDA COUNTY, BEWG MORE PARTICULARLY DESCRIBED AS FOLLOWS:BEGINNING AT A POINT ON THE WESTERLY LINE OF LANDREGAN STREET (WIDTH VARIES), SAID POINT ALSO BEING THE SOUTHWEST CORNER OF PARCEL 2, AS SAID PARCEL IS SHOWN ON THAT CERTAIN PARCEL MAP NO. 7258, FILEDFOR RECORD ON AUGUST 7, 1998, IN BOOK 236 OF MAPS AT PAGE 43, OFFICIAL RECORDS OF ALAMEDA COUNTY;
THENCE ALONG THE ARC OF A 298.00 FOOT RADIUS NON-TANGENT CURVE TO THE LEFT, WHOSE CENTER POINT BEARS SOUTH 85° 06' 20" WEST, THROUGH A CENTRAL ANGLE OF 06° 46' 16", AN ARC DISTANCE OF 35.22 FEET TO THE
INTERSECTION WITH THE EASTERLY PROLONGATION OF THE NORTHERLY LINE OF LOT 1, AS SAID LOT IS SHOWN ON THAT CERTAIN MAP OF TRACT 7353, FILED FOR RECORD ON OCTOBER 21, 2002, IN BOOK 267 OF MAPS AT PAGE 36, OFFICIALRECORDS OF ALAMEDA COUNTY; THENCE ALONG SAID PROLONGATION AND THE NORTHERLY LINE OF SAID LOT 1
AND THE NORTHERLY LFNE OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN THE GRANT DEED RECORDED ON MAY 19, 1993, AS INSTRUMENT NO.93-172566, OFFICIAL RECORDS OF ALAMEDA COUNTY, SOUTH 75° 40' 00" WEST, 211.21 FEET TO A POINT ON THE EASTERLY LINE OF A 100-FOOT-WIDE SOUTHERN PACIFIC RAILROAD RIGHT-OF-WAY AS SHOWN ON SAID RECORD OF SURVEY (17 RS 73); THENCE ALONG SAID EASTERLY LINE, ALONG THE ARC OF A 14373.96 FOOT
RADIUS NON-TANGENT CURVE TO THE LEFT, WHOSE CENTER POINT BEARS SOUTH 76° 09' 07" WEST, THROUGH A CENTRAL ANGLE OF 00° 08' 22", AN ARC DISTANCE OF 35.00 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL 2 (236 M43);THENCE ALONG THE SOUTH LINE OF SAID PARCEL 2, NORTH 75° 40' 00" EAST,214.59 FEET TO THE POINT OF BEGINNING. 00498\062\8868081.v7
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 Exhibit A-2
Platform Parcel 2
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF EMERYVILLE, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEING ALL OF PARCEL 3, AS SAID PARCEL IS SHOWN ON THAT CERTAD^f PARCEL MAP NO. 7258, FDLED FOR RECORD ON AUGUST 7, 1998, IN BOOK 236 OF MAPS, ATPAGE 43, OFFICIAL RECORDS OF ALAMEDA COUNTY 00498\062\8868081.v7
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 Exhibit A-3
Platform Parcel 3
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF EMERWILLE, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
A portion of59t Street (shown as Folsom Street on the Subdivision Map titled "Map of theProperty ofL.M. Beaudry and G. Peladeau", filed November 6, 1876 in Book 6 of Maps, Page 14, in the Office of the County Recorder ofAlameda County), more particularly described as follows:
Beginning at the intersection of the centerline of the 59t Street right-of-way and the Easterly line of a 100 foot wide Southern Pacific Railroad right-of-way line as shown on the Record of Survey Map (R/S No. 1168) titled "Resolution of S.P.R.R. Right-of-Way at Powell Street", prepared by Mark Thomas and Company, filed December 13, 1993 in Book 17 of Record of Survey at Pages 73-76; said point also being the most Southwesterly comer of the lands of Westinghouse ElectricCorporation, filed in Series No. 86-085949, on April 10, 1986 in the Office of the County Recorder ofAlameda County; thence along said centerline of 59 Street North 76° 53' 00" East,
8.83 feet; thence leaving said centerline of 59th Street South 12° 25' 00" East, 35.00 feet to theSoutherly right-of-way line of 59th Street; thence along said Southerly right-of- way line of 59 Street South 76° 53' 00" West, 8.74 feet to a point on the Easterly line of said 100 foot wideSouthern Pacific Railroad right-of-way; thence Northerly along said Easterly railroad right-ofway line along the arc of a non-tangent curve, concave to the West, having a radius of 14373.96 feet, the radius point of which from said curve bears South 77° 31' 02" West, through a centralangle of 00° 08' 22", an arc length of 35.00 feet to the point ofbegmning.
APN: 049-1325-002 (Portion)
00498\062\8868081.v7
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 Exhibit B
ES West Parcel
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF EMERYVILLE, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEING ALL OF PARCEL 2, AS SAID PARCEL IS SHOWN ON THAT CERTAIN PARCELMAP NO. 7258, FILED FOR RECORD ON AUGUST 7, 1998, LN BOOK 236 OF MAPS, ATPAGE 43, OFFICIAL RECORDS OF ALAMEDA COUNTY. 00498\062\8868081.v7
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 Exhibit C
Site Map
[See attached]
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 0 25' 50' W01
Scale f = 50'
AREA OF ENCROACHMENTm:CITY PARCEL
UWS OF CITY OF EMERW (PLATOI PARCEL 2;
feSilO?
t-=—^Ji
PLATOI PAlJ(|EL.3Jf (FROMt^ASE)
L——JL-JL—J
KIER+WRIGHT
3350 Scott Boulevard, Building 22 Phone; (408) 727-6665 Santa Clara, California 95054
SITE MAP
EXHIBIT "C"
EMERYVILLE, CALIFORNIA
DATE MAY, 2022
SCALE 1"= 40'
BY RASH
JOB NO. A09533-10
SHEET 10F1
Z;\2009\A09533-10\OW\S(JRVEAO(HIHTS\A09533-lO-WAREHAM-an-ES-WEST.c«ii 5-26-22 09;08;35PM rstewrt 00498\062\8868081.v7
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of theindividual who signed the document to which this certificate is attached, and not the truthfulness,accuracy, or validity of that document.
STATE OF _ )) ss.
COUNTY OF _ )
On _, 2024, 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 instrumentand acknowledged to me that he/she/they executed the same in his/her/their authorizedcapacity(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 tme and correct.
WITNESS my hand and official seal.
Signature _(Seal)
00498\062\8868081.v400498\062\8868081.v6
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ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which thiscertificate is attached, and not the truthfulness,accuracy, or validity of that document.
STATE OF _ )) ss.
COUNTY OF _ )On _, 2024, 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 authorizedcapacity(ies), and that by his/her/their signature(s) on the instmment 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 tme and correct.
WITNESS my hand and official seal.
Signature _(Seal)
00498\062\8868081.v400498\062\8868081.v6
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EXHIBIT C
ACCESS EASEMENT
C-l
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Wareham Development Corporation
1120 Nye Street, Suite 400
San Rafael, CA 94901-2946
Attn: Richard K. RobbinsThis document is exempt from the payment of (i) a recording fee pursuant to Government Code §27383, and (ii) the Building Homes and Jobs Trust Fund fee pursuant to Government Code §27388.1(a)(2)(D).
ACCESS EASEMENT AGREEMENT
This Access Easement Agreement (the "Agreement") is entered into as of _ _, 2024, by and between the CITY OF EMERYVILLE, a California municipal corporation (the "City"), as grantor, and WAREHAM DEVELOPMENT CORPORATION, a Californiacorporation ("WDC"), as grantee. City and WDC are sometimes referred to herein individually asa "Party" and collectively as the "Parties."
RECITALS
A. City owns the 35 foot wide strip of land in the vicinity of 59th Street that runs from the western edge of Horton Street to the railroad tracks to the west, as described on Exhibit A attached hereto (the "City Parcel"). The City Parcel is adjacent to the parcel of land on which issituated a building that serves as the Emeryville station for Amtrak's Capitol Corridor rail service(the "Station Parcel"). The eastern portion of a pedestrian bridge that spans said railroad tracks islocated on the City Parcel (the "Pedestrian Bridge").
B. WDC is the current owner of the legal parcel that constitutes the air space above the Station Parcel, as more particularly described on Exhibit B attached hereto (the "Air SpaceParcel"). The Air Space Parcel above the Station Parcel was created by Parcel Map 10899, recorded in Book 340 of Maps, at pages 98-99 as Document No. 2018206203 of the OfficialRecords of the Recorder ofAlameda County, California. The City Parcel and the Air Space Parcelare sometimes referred to herein as a "Parcel" and collectively as the "Parcels".
C. The Parties are entering into this Agreement to provide for the right of pedestrian and bicycle access for the users of any improvements hereafter constructed within the Air Space Parcel (the "Air Space Parcel Improvements") across the City Parcel to the public right of wayalong Horton Street and from said right of way to and from the Pedestrian Bridge.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the Parties agree as follows:
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1. Grant of Access Easement. City hereby grants to WDC, as an appurtenance to the Air Space Parcel, an easement for pedestrian and bicycle access over and across the City Parcel to and from Horton Street from and to the Air Space Parcel as well as the Pedestrian Bridge (the"Access Easement). The Access Easement shall burden the City Parcel, as the sement tenement, and shall benefit and be appurtenant to the Air Space Parcel, as the dominant tenement.
2. Run with the Land. The Access Easement shall run with the land that is burdened and benefited thereby and shall benefit or bind, as applicable, the owners of such land and their respective successors, assigns and legal representatives. The Access Easement shall be appurtenant to the land thus affected and shall not be separated or separately conveyed, assigned,leased, rented, encumbered, hypothecated, occupied or used, and any purported attempt to do soin violation of this Agreement shall be void. The Access Easement shall automatically accompany the conveyance of any part of the land affected hereby, even though said easement is not referredto in the instrument of conveyance. Effective upon the conveyance of a Party's entire interest in aParcel, such Party shall thereupon be released and discharged from any and all obligations in connection with such Parcel that arise under this Agreement after the effective date of suchconveyance (but such Party shall remain liable for all such obligations arising under this Agreement 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 Agreement after the effective date of such conveyance.
3. Indemnity. WDC shall indemnify, defend and hold harmless the City and its officers, officials, directors, members, successors and assigns and employees from and against anyand all third party suits or actions (at law or in equity), administrative proceedings, claims,liabilities, obligations, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys' fees and costs), including, but not limited to, bodily injury or death of any person or damage to property, to the extent arising out of or mcurred as a consequence of the negligence ofWDC relating to any acts or omissions ofWDC, or any breach hereunder on the part of WDC.
4. Insurance. During the period from and after the date that WDC constructs any Air Space Parcel Improvements, WDC shall procure and thereafter maintain during the balance of the term of this Agreement (so long as any such Air Space Parcel Improvements remain in place) insurance insuring against claims on account of bodily injury or death, personal injury, property damage, and contractual liability that may arise from, or be related to, use of the City Parcel provided for hereunder by WDC, as more particularly set forth in Exhibit C attached hereto.
5. Captions and Headings. The captions and headings contained in this Agreement are included herein for convenience of reference only, and shall not be construed to limit or enlarge the terms hereof or otherwise affect the meaning or interpretation of this Agreement.
6. Governing Law; Venue. All matters of construction and interpretation with regard to this Agreement shall be governed by the laws of the State of California. Any action or proceeding brought by any Party to enforce or interpret the terms of this Agreement shall be brought in the Superior Court of the County ofAlameda.
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7. Severability. If any of the covenants, conditions or terms of this Agreement shall be found void or unenforceable for whatever reason by any court of law or of equity, then everyother covenant, condition or term herein set forth shall remain valid and binding in such event, andsuch covenants, conditions or terms shall be given effect to the extent required to carry out thegeneral intention of the Parties and to impart validity to such covenant, condition or term.
8. Mortgagee Provisions. The Agreement shall at all times be superior to the lien of any deed of trust, mortgage, security agreement or other monetary lien or encumbrance that may exist against any of the Parcels as of, or at any time after, the date of this Agreement. 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 theirinterests under such liens to the rights and interests of the Parties created by this Agreement. No breach of any of the provisions of this Agreement nor the enforcement thereof shall defeat or render invalid the lien of any mortgage, deed of trust or other security interest, but all of the provisions of this Agreement shall be binding upon and effective against any person whose title is derived through foreclosure or otherwise. In no event shall the first mortgagee of any Parcel beliable for past due sums and any acts or omissions of the owner of such Parcel and shall only be responsible for performing the obligations of the owner of such Parcel arising from and after the date of acquisition of title to such Parcel.
9. No Public Dedication. This Agreement is not intended as and does not create or make any offer to dedicate any easements or other rights to the public, except to the extent set forthherein. Except as specifically set forth in this Agreement, no rights, privileges or immunities ofany Party 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 Agreement.
10. No Joint Venture. The provisions of this Agreement are not intended to create, nor shall they be in any way interpreted or construed to create a joint venture, partnership or any othersimilar relationship between the Parties.
11. Further Actions and Approvals. Each Party agrees to execute and deliver all further documents and to take all further actions reasonably necessary or appropriate to effectuate the purposes of this Agreement.
12. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed to be an original, and all of whichcounterparts taken together will constitute one and the same instmment.
13. Attorneys' Fees. In the event that any action is brought by a Party for the enforcement or declaration of any right or remedy in or under this Agreement or for the breach ofany covenant or condition of this Agreement, each Party shall be responsible to cover their own fees and costs incurred in connection with such action, including attorneys' fees and costs.
14. Recordation. Following the mutual execution by the Parties, this Agreement shall be recorded in the Official Records ofAlameda County, California. 1828\22\3815076.1
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 FN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
WAREHAM DEVELOPMENT
CORPORATION,
a California corporation
By:
Richard K. Robbins, President
Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7
CITY OF EMERYVILLE,
a California municipal corporation
By:
Paul Buddenhagen, City Manager
APPROVED AS TO FORM:John Kennedy, City Attorney
ATTEST:
Lorrayne Leong, Deputy City Clerk
Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7
EXHIBIT A
DESCRIPTION OF CITY PARCEL
ALL THAT CERTAIN REAL PROPERTY SITUATE EM THE CITY OF EMERYVELLE, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEING A PORTION OF 59TH STREET AS SAID AS SHOWN ON THAT CERTAINRECORD OF SURVEY NO. 1168, FILED FOR RECORD ON DECEMBER 13,1993, INBOOK 17 OF RECORDS OF SURVEYS AT PAGE 73, OFFICIAL RECORDS OF ALAMEDA COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:BEGFNNING AT A POLNT ON THE WESTERLY LINE OF LANDREGAN STREET (WIDTH VARIES), SAID POINT ALSO BEWG THE SOUTHWEST CORNER OF PARCEL 2, AS SAID PARCEL IS SHOWN ON THAT CERTAIN PARCEL MAP NO. 7258, FILEDFOR RECORD ON AUGUST 7, 1998, IN BOOK 236 OF MAPS AT PAGE 43, OFFICIAL RECORDS OF ALAMEDA COUNTY;THENCE ALONG THE ARC OF A 298.00 FOOT RADIUS NON-TANGENT CURVE TOTHE LEFT, WHOSE CENTER POINT BEARS SOUTH 85° 06' 20" WEST, THROUGH A CENTRAL ANGLE OF 06° 46' 16", AN ARC DISTANCE OF 35.22 FEET TO THE
INTERSECTION WITH THE EASTERLY PROLONGATION OF THE NORTHERLY LINE OF LOT 1, AS SAID LOT IS SHOWN ON THAT CERTAIN MAP OF TRACT 7353, FILED FOR RECORD ON OCTOBER 21, 2002, IN BOOK 267 OF MAPS AT PAGE 36, OFFICIAL RECORDS OF ALAMEDA COUNTY;THENCE ALONG SAID PROLONGATION AND THE NORTHERLY LINE OF SAID LOT 1 AND THE NORTHERLY LINE OF THAT CERTAIN PARCEL OF LAND DESCRIBED LNTHE GRANT DEED RECORDED ON MAY 19, 1993, AS INSTRUMENT NO.93-172566, OFFICIAL RECORDS OF ALAMEDA COUNTY, SOUTH 75° 40' 00" WEST, 211.21 FEET TO A POINT ON THE EASTERLY LWE OF A 100-FOOT-WIDE SOUTHERN PACIFICRAD-.ROAD RIGHT-OF-WAY AS SHOWN ON SAID RECORD OF SURVEY (17 RS 73);THENCE ALONG SAID EASTERLY LINE, ALONG THE ARC OF A 14373.96 FOOT
RADRJS NON-TANGENT CURVE TO THE LEFT, WHOSE CENTER POINT BEARS SOUTH 76° 09' 07" WEST, THROUGH A CENTRAL ANGLE OF 00° 08' 22", AN ARC DISTANCE OF 35.00 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL 2 (236 M 43);
THENCE ALONG THE SOUTH LINE OF SAID PARCEL 2, NORTH 75° 40' 00" EAST, 214.59 FEET TO THE POINT OF BEGINNING.1828\22\3815076.1 Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7
EXHIBIT B
DESCRIPTION OF AIR SPACE PARCEL
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF EMERYVILLE, COUNTY OF ALAMEDA, 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
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EXHIBIT C
INSURANCE REQUIREMENTS
WDC shall procure and maintain insurance insuring against claims on account of bodily injury ordeath, personal injury, property damage, and contractual liability that may arise from, or be related to, use of the City Parcel pursuant to the Access Easement provided for hereunder by WDC and its agents, representatives, employees, or subcontractors, as more particularly set forth below(provided, however, that such insurance requirements with respect to WDC shall only become applicable upon commencement of development of the Air Space Parcel Improvements).
All policies shall be written on an occurrence basis (so long as such form of policy is then commonly available in the commercial insurance marketplace). All insurance shall be provided by and/or written by companies that are authorized to do business in the State of California andhave, at all times, a Best's rating of "A- VII" (A minus VII) or better by AM Best & Company, and with coverage and policy limits as follows:
(i) Commercial General Liability coverage insuring against claims on account of loss of life, personal injury or property damage with limits of not less than $2,000,000 peroccurrence, $5,000,000 in the annual aggregate; (ii) WDC shall cause City to be named as an additional insured.(iii) WDC shall provide (a) at least thirty (30) days written notice to City prior to cancellation, and (b) at least ten (10) days written notice to City for cancellation due to nonpayment of applicable premiums. (iv) WDC's insurance coverage shall be the primary insurance with respect to any other insurance or self-insurance programs maintained by the City and such other insuranceor self-insurance programs of the City shall be excess and non-contributory. (v) WDC shall furnish the City with Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coveragerequired by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City. However, failure to provide the required documents to City prior to commencement of development of the Air Space Parcel Improvements by WDC shall notwaive City's right to require them, or WDC's obligation to provide them. The City reserves the right to require complete copies of all required insurance policies, including endorsements requiredby these specifications, at any time. (vi) WDC hereby grants to City a waiver of subrogation which any insurer may acquire against the City, its officers, officials, employees, and volunteers, from WDC by virtue of the payment of any loss. WDC agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation from its insurer, but this provision applies regardless of whether or notthe City has received a waiver of subrogation endorsement from the insurer. 1828\22\3815076.1
Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 (vii) All insurance required under this Agreement are considered to be minimum limits only and are not to restrict the liability of WDC in any way. City, in its commercially reasonable discretion, has the ability to require additional insurance or increased limits upon no less than ninety (90) calendar days prior notice to WDC. 1828\22\3815076.1
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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 truthfuhiess, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF _ )On , 2024, before me,
Date (Here Insert Name and Title of the Officer)
personally appeared
Name(s) of Signer (s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to thewithin 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
Signature of Notary Public
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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 truthfuhiess, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF _ )
On , 2024, before me,
Date (Here Insert Name and Title of the Officer)
personally appeared
Name (s) of Signer (s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to thewithin 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
Signature of Notary Public
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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 , 2024, before me,
Date (Here Insert Name and Title of the Officer)
personally appeared
Name(s) ofSigner(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to thewithin instrument and acknowledged to me that he/she/they executed the same m his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instmment 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
Signature of Notary Public
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EXHBITD
UTILITY EASEMENT
D-l
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Wareham Development Corporation
1120 Nye Street, Suite 400
San Rafael,CA 94901-2946
Attn: Richard K. RobbinsThis document is exempt from the payment of (i) a recording fee pursuant to Government Code §27383, and (ii) the Building Homes and Jobs Trust Fund fee pursuant to Government Code§27388.1(a)(2)(D).
AGREEMENT FOR UTILITY LINES EASEMENT
This Agreement for Utility Lines Easement (the "Agreement") is entered into as of , 2024, by and between the CITY OF EMERWILLE, a California municipal corporation (the "City"), as grantor, and WAREHAM DEVELOPMENT CORPORATION, a California corporation ("WDC"), as grantee. City and WDC are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
A. City owns the 35 foot wide strip of land in the vicinity of 59th Street that mns from the western edge of Horton Street to the railroad tracks to the west, as described on Exhibit A attached hereto (the "City Parcel"). The City Parcel is adjacent to the parcel of land on which is situated a building that serves as the Emeryville station for Amtrak's Capitol Corridor rail service(the "Station Parcel").
B. WDC is the current owner of the legal parcel that constitutes the air space above the Station Parcel, as more particularly described on Exhibit B attached hereto (the "Air SpaceParcel"). The Air Space Parcel above the Station Parcel was created by Parcel Map 10899,recorded in Book 340 of Maps, at pages 98-99 as Document No. 2018206203 of the OfficialRecords of the Recorder ofAlameda County, California. The City Parcel and the Air Space Parcel are sometimes referred to herein as a "Parcel" and collectively as the "Parcels." C. The Parties are entering into this Agreement to provide for the right of WDC to install utility lines and related equipment below grade within the area of the City Parcel ("Utility Lines') to serve improvements that may in the future be constructed within the Air Space Parcel (the "Air Space Parcel Improvements").
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the Parties agree as follows:
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1. Grant of Easement for Utility Lines. City hereby grants to WDC, as an appurtenance to the Air Space Parcel, an easement to install, use, maintain, repair, remove, replaceand relocate Utility Lines across, under and within the City Parcel as may hereafter be required from time to time to provide utility services to any Air Space Parcel Improvements that may hereafter be constructed within the Air Space Parcel (the "Utility Lines Easement"). The Parties acknowledge that the Utility Lines Easement granted herein provides for the placement of Utility Lines within the area of the City Parcel to the boundary of the Station Parcel (the right ofWDC to extend such Utility Lines from the Station Parcel to the Air Space Parcel shall be the subject of a separate easement agreement entered into with the owner of the Station Parcel, as grantor. The Utility Lines Easement shall burden the City Parcel, as the sendent tenement, and shall benefit andbe appurtenant to the Air Space Parcel, as the dominant tenement.
2. Ancillary Rights. With regard to the installation, use, maintenance, repair, removal, replacement and relocation of any Utility Lines, WDC and its agents, employees and contractors shall have such incidental rights of access over and across the City Parcel with workers, equipment and materials as may reasonably be required to undertake and perform such work.
3. Relocation of Utility Lines. City reserves the right to require the relocation of Utility Lines placed within the City Parcel pursuant to the Utility Lines Easement. WDC shall, at its sole cost and expense, relocate any and all Utility Lines placed by WDC across, under or within the City Parcel when necessary, as determined by City in the reasonable exercise of its discretion,to accommodate and make way for a proper governmental use of or modification to the City Parcel.
4. Permits and Licenses; Compliance with Law. In connection with its rights hereunder pursuant to the Utility Lines Easement, WDC (i) shall comply with all applicable legalrequirements including all federal, state, and local laws (including City ordinances and resolutions, and requirements of other agencies with authority), whether or not said laws are expressly stated herein, and (ii) shall, at its sole cost and expense, obtain and maintain all necessary permits and licenses.
5. WDC Obligations. WDC, at its sole cost and expense, shall maintain and repair the Utility Lines placed by WDC within the City Parcel and promptly repair damage to the City Parcel to the extent caused by WDC, or its employees, agents, contractors or subcontractors, in connection with WDC's installation, use, maintenance, repair, removal, replacement and relocation of the Utility Lines placed by WDC within the City Parcel, to the reasonable satisfaction of City. In the event WDC fails to perform the required maintenance or repairs within ninety (90)calendar days after City's written demand, or if such maintenance or repairs cannot reasonably becompleted within ninety (90) calendar days and WDC, fails to commence such maintenance or repairs within said time period and thereafter diligently prosecute the maintenance or repairs to completion, then City shall have the right, but not the obligation, to perform such work on behalfofWDC; and WDC agrees to pay City upon demand all reasonable charges and costs incurred byCity in connection therewith.
Prior to the commencement of any work within the City Parcel pursuant to the Utility Lines Easement, WDC, shall cordon off the affected area of the City Parcel and take such other actions as may be reasonably requested by City to ensure the safety of the public, including, without1828\22\3815078.1 Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 limitation, to ensure that pedestrians and bicyclists do not inadvertently enter upon the affected area of the City Parcel.
WDC shall: (i) secure City approval of all plans and specifications related to the location, placement and installation of Utility Lines within the City Parcel prior to commencement of work in relation thereto; (ii) except in the event of emergency work required to protect or preserve lives or property, secure an encroachment permit from the City's Public Works Department for any andall work related to the installation, maintenance, repair, removal, replacement or relocation of Utility Lines placed by WDC within the City Parcel, and otherwise comply with City requirements therefor as may be in effect at that time; (iii) pay City for the inspection of all work undertaken by WDC within the City Parcel not to exceed the reasonable cost of providing said inspection services; (iv) provide City no less than three (3) business days prior written notice before undertaking any work within the City Parcel; and (v) provide City with stamped and signed "As Built" drawings within thirty (30) calendar days following completion of the installation,replacement or relocation of Utility Lines placed by WDC within the City Parcel.
WDC shall pay, when due, all persons furnishing labor or materials in connection with any work undertaken by WDC within the City Parcel pursuant to the Utility Lines Easement and shallkeep the City Parcel free and clear of any related mechanics' liens. If any such lien is filed, WDC shall cause such lien to be released and removed within thirty (30) calendar days after the date of filing (by payment, bonding or otherwise), and ifWDC fails to do so, the City may take such actionas may be necessary to remove such lien, without the duty to investigate the validity of it (unless WDC has commenced an action to contest, dispute or defend the claims of lienholders and has provided the City with written notice of the pendency of the action, in which case WDC shall bond over or otherwise cause such lien to be removed of record pending the resolution of work dispute), and WDC shall reimburse the City for reasonable actual amounts expended in connection with removing such lien together with interest thereon at the Local Agency Investment Fund interestrate, from the date of expenditure.
WDC shall undertake any work within the City Parcel undertaken by WDC pursuant to the Utility Lines Easement involving soil excavation or ground disturbing activities in accordance with applicable local, state and federal laws and regulations, including all environmental laws and regulations. WDC shall place plastic sheeting beneath and over all excavated soils that aretemporarily stockpiled. WDC shall be solely responsible for all costs, fees, taxes and expenses associated with securing local, state or federal regulatory approval of, and the excavation, handling, testing, transportation, storage and disposal of soils and groundwater pursuant to, anywork within the City Parcel undertaken by WDC pursuant to the Utility Lines Easement, and shall sign all manifests for the disposal of any soils or groundwater impacted with hazardous materials as the "generator" thereof or shall otherwise identify the generator thereof in accordance withapplicable governmental regulations. In no event, however, shall City be identified as thegenerator.
6. Assumption of Risk and Releases. Each person entering upon the City Parcel pursuant to the Utility Lines Easement to undertake work on behalf of WDC related to the installation, maintenance, repair, removal, replacement or relocation of Utility Lines shall do so at their own risk. On behalf of itself and its agents, representatives, assigns, heirs, spouses, successors-in-interest, executors, administrators, employees, contractors, subcontractors, material 1828\22\3815078.1
Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 suppliers and vendors ("Releasors"), WDC assumes all risk arising out of any such entry upon the City Parcel and agrees that City is irrevocably and unconditionally released and shall not be liablein any manner for injury to or death ofReleasors or their respective officers, employees or agents or for damage to property of Releasors arising from any cause, except as a result of the gross negligence or willful misconduct of City. This release applies to all potential future claims and WDC, on behalf of itself and the Releasors, agrees to waive any and all rights pursuant to Section 1542 of the California Civil Code, which reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THAT THE CREDITOR OR THE RELEASING PARTY DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE AND THAT, IFKNOWN BY HIM OR HER WOULD HAVE MATERIALLYAFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
WDC shall include within each of its subcontracts, and within any other agreements with vendorsor suppliers who will be entering upon the City Parcel for the purpose of undertaking any work related to the installation, maintenance, repair, removal, replacement or relocation of Utility Lines, an assumption of risk and a release in favor of City substantially identical to this Section 6.
7. Indemnity. WDC shall indemnify, defend and hold harmless the City and its officers, officials, directors, members, successors and assigns and employees from and against anyand all third party suits or actions (at law or in equity), administrative proceedings, claims, liabilities, obligations, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys' fees and costs), including, but not limited to, bodily injury ordeath of any person or damage to property, to the extent arising out of or incurred as a consequence of the use of the City Parcel by WDC pursuant to the Utility Lines Easement or in ccmnection with the installation, maintenance, repair, removal, replacement or relocation of Utility Lines pursuant to the Utility Lines Easement by WDC, and its agents, employees and contractors, the negligence of WDC relating to any acts or omissions of WDC, or any breach under this Agreement on the part of WDC.
8. Insurance. During the period from and after the date that WDC first commences any work within the City Parcel pursuant to the Utility Lines Easement, WDC shall procure and thereafter maintain during the balance of the term of this Agreement (so long as any such Utility Lines installed by WDC remain in place) insurance insuring against claims on account of bodily injury or death, personal injury, property damage, and contractual liability that may arise from, or be related to, use of the City Parcel provided for hereunder by WDC, as more particularly set forth in Exhibit C attached hereto.
9. Waivers, Consents, and Modifications. Waivers and consents respecting this Agreement shall be binding only if in writing and signed by the Party against whom such waiver or consent is sought to be enforced. This Agreement may be amended, in whole or in part, at any time or from time to time, only by an instmment recorded in the Official Records of Alameda County, California.1828\22\3815078.1
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10. Estoppel Certificates. Each Party (the "Certifying Party") shall at any time and from time to time upon not less than twenty (20) days' prior written notice from the other Party (the "Requesting Party"), execute, acknowledge and deliver to the Requesting Party a statement in writing, as requested by the Requesting Party, certifying: (a) that this Agreement and the rights created hereby are unmodifled and in full force and effect (or, if modified, adequately identifyingsuch modification and certifying that this Agreement and the rights as so modified are in full force and effect), and (b) whether or not to the knowledge of the Certifying Party there is any default by the Requesting Party in the performance of any term, covenant, condition, provision or agreement contained in this Agreement and further whether or not there are any setoffs, defenses orcounterclaims against enforcement of the obligations to be performed under this Agreement and,if there are, specifying each such material default, setoff, defense or counterclaim. Any suchstatement may be relied upon by any prospective purchaser, assignee, lessor, lessee or mortgagee of the Requesting Party.
11. Run with the Land. The easements, covenants, conditions and restrictions herein shall be deemed easements, covenants, conditions and restrictions running with the land that is burdened and benefited by such easements, covenants, conditions and restrictions and they shallbenefit or bind, as applicable, the owners of such land and their respective successors, assigns and legal representatives. Each of the easements, covenants, conditions and restrictions contained herein shall be appurtenant to the land 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 Agreement shall be void. Such easements, covenants, conditions and restrictions shall automatically accompany the conveyance of any partof the land affected hereby, even though the easements, covenants, conditions and restrictions are not referred to in the instrument of conveyance. Effective upon the conveyance of a Party's entire interest in a Parcel, such Party shall thereupon be released and discharged from any and allobligations in connection with such Parcel that arise under this Agreement after the effective date of such conveyance (but such Party shall remain liable for all such obligations arising under thisAgreement 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 Agreement after the effective date of such conveyance.
12. Captions and Headings. The captions and headings contained in this Agreement are included herein for convenience of reference only, and shall not be construed to limit or enlarge the terms hereof or otherwise affect the meaning or interpretation of this Agreement.
13. Governing Law; Venue. All matters of construction and interpretation with regard to this Agreement shall be governed by the laws of the State of California. Any action orproceeding brought by any Party to enforce or interpret the terms of this Agreement shall be brought in the Superior Court of the County ofAlameda.
14. Severabilitv. If any of the covenants, conditions or terms of this Agreement shall be found void or unenforceable for whatever reason by any court of law or of equity, then every other covenant, condition or term herein set forth shall remain valid and binding in such event, and such covenants, conditions or terms shall be given effect to the extent required to carry out the general intention of the Parties and to impart validity to such covenant, condition or term.1828\22\3815078.1 Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7
15. Mortgagee Provisions. The Agreement shall at all times be superior to the lien of any deed of trust, mortgage, security agreement or other monetary lien or encumbrance that mayexist against any of the Parcels as of, or at any time after, the date of this Agreement. 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 theirinterests under such liens to the rights and interests of the Parties created by this Agreement. No breach of any of the provisions of this Agreement nor the enforcement thereof shall defeat or render invalid the lien of any mortgage, deed of trust or other security interest, but all of the provisions of this Agreement shall be binding upon and effective against any person whose title is derived through foreclosure or otherwise. In no event shall the first mortgagee of any Parcel beliable for past due sums and any acts or omissions of the owner of such Parcel and shall only be responsible for performing the obligations of the owner of such Parcel arising from and after the date of acquisition of title to such Parcel.
16. Event of Default; Remedies. It shall be a breach of a Party's obligations under this Agreement and shall constitute a default hereunder ("Event of Default") if a Party does not cure any breach of this Agreement within thirty (30) days after receipt of notice from the other Party; provided, however, that if such Party has commenced to cure such 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. Without limiting any other provision herein, upon the occurrence of an Event of Default, the non-defaulting Party may, as its sole and exclusive remedy, bring any action or proceeding in the nature of specific performance, injunction or other equitable remedy to enforce defaulting Party's obligations hereunder, it being acknowledged that damages are not allowed as a remedy for a default or threatened breach of this Agreement.
Accordingly, each Party specifically waives and releases any rights or claims it may otherwisehave at law or in equity to recover any and all forms of damages, be they actual, consequential, special or punitive damages from the defaulting Party. No breach of any provision of this Agreement shall entitle any Party to terminate or cancel this Agreement or the easements or rights granted herein.
17. No Public Dedication. This Agreement is not intended as and does not create or make any offer to dedicate any easements or other rights to the public. Except as specifically setforth in this Agreement, no rights, privileges or immunities of any Party shall inure to the benefitof any third-party, nor shall any third party be deemed to be a beneficiary of any of the provisionscontained in this Agreement.
18. No Joint Venture. The provisions of this Agreement are not intended to create, nor shall they be in any way interpreted or construed to create, a joint venture, partnership or any othersimilar relationship between the Parties.
19. Further Actions and Approvals. Each Party agrees to execute and deliver all further documents and to take all further actions reasonably necessary or appropriate to effectuate the purposes of this Agreement.
20. Notices. Any notices required to be sent hereunder shall be sent by certified mail, return receipt requested, postage prepaid, or by guaranteed overnight delivery service to the Parties 1828\22\3815078.1
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If to WDC: Wareham Development Corporation
1120 Nye Street, Suite 400
San Rafael, California 94901-2946
Attention: Mr. Richard K. Robbins
If to the City: City ofEmeryville
1333 Park Avenue
Emeryville, California 94608-3517
Attention: City Manager
With a copy to: City of Emeryville
1333 Park Avenue
Emeryville, California 94608-3517
Attention: City Attorney
21. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed to be an original, and all of whichcounterparts taken together will constitute one and the same instrument.
22. Attorneys' Fees. In the event that any action is brought by a Party for the enforcement or declaration of any right or remedy in or under this Agreement or for the breach ofany covenant or condition of this Agreement, each Party shall be responsible to cover their own fees and costs incurred in connection with such action, including attorneys' fees and costs.
23. Recordation. Following the mutual execution by the Parties, this Agreement shall be recorded in the Official Records ofAlameda County, California. [Signatures Follow on Next Page]
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WAREHAM DEVELOPMENT
CORPORATION,
a California corporation
By:
Richard K. Robbins, President
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CITY OF EMERYVILLE,
a California municipal corporation
By:
Paul Buddenhagen, City Manager
APPROVED AS TO FORM:
John Kennedy, City Attorney
ATTEST:Lorrayne Leong, Deputy City Clerk
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EXHIBIT A
DESCRIPTION OF CITY PARCEL
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF EMERYVILLE, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEING A PORTION OF 59TH STREET AS SAID AS SHOWN ON THAT CERTAINRECORD OF SURVEY NO. 1 168, FILED FOR RECORD ON DECEMBER 13, 1993, IN BOOK 17 OF RECORDS OF SURVEYS AT PAGE 73, OFFICIAL RECORDS OF ALAMEDA COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:BEGINNING AT A POINT ON THE WESTERLY LINE OF LANDREGAN STREET (WIDTH VARIES), SAID POINT ALSO BEING THE SOUTHWEST CORNER OF PARCEL 2, AS SAID PARCEL IS SHOWN ON THAT CERTAIN PARCEL MAP NO. 7258,FILED FOR RECORD ON AUGUST 7, 1998, IN BOOK 236 OF MAPS AT PAGE 43, OFFICIAL RECORDS OF ALAMEDA COUNTY;
THENCE ALONG THE ARC OF A 298.00 FOOT RADIUS NON-TANGENT CURVE TOTHE LEFT, WHOSE CENTER POINT BEARS SOUTH 85° 06' 20" WEST, THROUGH A CENTRAL ANGLE OF 06° 46' 16", AN ARC DISTANCE OF 35.22 FEET TO THE INTERSECTION WITH THE EASTERLY PROLONGATION OF THE NORTHERLY LINEOF LOT 1, AS SAID LOT IS SHOWN ON THAT CERTAIN MAP OF TRACT 7353, FILED FOR RECORD ON OCTOBER 21, 2002, IN BOOK 267 OF MAPS AT PAGE 36, OFFICIALRECORDS OF ALAMEDA COUNTY; THENCE ALONG SAID PROLONGATION AND THE NORTHERLY LWE OF SAID LOT 1
AND THE NORTHERLY LINE OF THAT CERTAIN PARCEL OF LAND DESCRIBED LN THE GRANT DEED RECORDED ON MAY 19, 1993, AS INSTRUMENT NO.93-172566, OFFICIAL RECORDS OF ALAMEDA COUNTY, SOUTH 75° 40' 00" WEST, 211.21 FEET TO A POWT ON THE EASTERLY LINE OF A 100-FOOT-WIDE SOUTHERN PACIFIC RAD.ROAD RIGHT-OF-WAY AS SHOWN ON SAID RECORD OF SURVEY (17 RS 73); THENCE ALONG SAID EASTERLY LINE, ALONG THE ARC OF A 14373.96 FOOT
RADIUS NON-TANGENT CURVE TO THE LEFT, WHOSE CENTER POWT BEARS SOUTH 76° 09' 07" WEST, THROUGH A CENTRAL ANGLE OF 00° 08' 22", AN ARC DISTANCE OF 35.00 FEET TO THE SOUTHEAST CORNER OF SAID PARCEL 2(236 M 43); THENCE ALONG THE SOUTH LINE OF SAID PARCEL 2, NORTH 75° 40' 00" EAST,214.59 FEET TO THE POINT OF BEGINNING. 1828\22\3815078.1
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EXHIBIT B
DESCRIPTION OF ADR SPACE PARCEL
ALL THAT CERTAIN REAL PROPERTY SITUATE IN THE CITY OF EMERYVILLE, COUNTY OF ALAMEDA, 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
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EXHIBIT C
INSURANCE REQUIREMENTS
WDC shall procure and maintain insurance insuring against claims on account of bodily injury ordeath, personal injury, property damage, and contractual liability that may arise from, or be related to, use of the City Parcel pursuant to the Utility Lines Easement provided for hereunder by WDC and its agents, representatives, employees, or subcontractors, as more particularly set forth below(provided, however, that such insurance requirements with respect to WDC shall only becomeapplicable from and after the date that WDC first commences any work within the City Parcel pursuant to the Utility Lines Easement).
All policies shall be written on an occurrence basis (so long as such form of policy is then commonly available in the commercial insurance marketplace). All insurance shall be provided by and/or written by companies that are authorized to do business in the State of California andhave, at all times, a Best's rating of "A- VII" (A minus VII) or better by AM Best & Company,and with coverage and policy limits as follows:
(i) Commercial General Liability coverage insuring against claims on account of loss of life, personal injury or property damage with limits of not less than $2,000,000 peroccurrence, $5,000,000 in the annual aggregate; (ii) Comprehensive auto liability insurance for all owned, hired and non-owned vehicles brought onto the City Parcel with combined single limits of not less than $1,000,000 per occurrence;
(iii) Worker's Compensation insurance as required by the State of California; (iv) Employer's liability insurance on all employees, for occupational accidents or disease, with limits of not less than $1,000,000 per accident, $1,000,000 per disease, and $1,000,000 policy limit;
(v) Only at such time that ground disturbing activities are undertaken within the City Parcel pursuant to the Utility Lines Easement, WDC shall procure and maintain, or shall cause its Contractor to procure and maintain, Contractor's Pollution Legal Liability Insurance for liabilities caused by or resulting from a release of hazardous materials or other pollution conditions (including, but not limited to, remediation of soil, groundwater or other contaminants) in connection with such work within the City Parcel, whether such operations be by WDC or its contractors, subcontractors, consultants or suppliers, with minimum liability limits of Five Million Dollars ($5,000,000) per occurrence and Five Million Dollars ($5,000,000) in the aggregate. Ifthe policy is not written on an occurrence form, the policy shall be maintained without lapse for, or contain an extended reporting period up to, the applicable statute of limitations/repose. The policy definition of "Covered Operations" or any other such designation of services or operations performed by WDC or its contractors, subcontractors, consultants and suppliers must include all 1828\22\3815078.1
Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 work or services performed by WDC and its contractors, subcontractors, consultants, and suppliers under or in connection with the work within the City Parcel pursuant to the Utility Lines Easement. (vi) Under the policies required in clauses (i), (ii) and (v) above, WDC shall cause City to be named as an additional insured.
(vii) WDC shall provide (a) at least thirty (30) days written notice to City prior to cancellation, and (b) at least ten (10) days written notice to City for cancellation due to nonpayment of applicable premiums. (viii) WDC's (or, if applicable, its Contractor's) insurance coverage shall be the primary insurance with respect to any other insurance or self-insurance programs maintained by the City and such other insurance or self-insurance programs of the City shall be excess and noncontributory. (ix) WDC (or, if applicable, its Contractor) shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for eachsubcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein, (xi) WDC (or, if applicable, its Contractor) shall furnish the City with Certificates ofInsurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City. However, failure to provide the required documents to City prior to commencement of development of the Air Space Parcel Improvements by WDC, shall not waive City's right to require them, or WDC's obligation to provide them. The City reserves the right to require complete copies of all required insurancepolicies, including endorsements required by these specifications, at any time. (xi) WDC (or, if applicable, its Contractor) hereby grants to the City a waiver of subrogation which any insurer may acquire against the City, its officers, officials, employees, and volunteers, from WDC (or, if applicable, its Contractor) by virtue of the payment of any loss.
WDC agrees to obtain any endorsement that may be necessary to affect this waiver of subrogationfrom its insurer, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by WDC and its contractors, employees, agents, and subcontractors.
(xiii) All insurance required under this Agreement are considered to be minimum limits only and are not to restrict the liability of WDC in any way. City, in its commercially reasonable discretion, has the ability to require additional insurance or increased limits upon no less than ninety (90) calendar days prior notice to WDC. 1828\22\3815078.1
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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 , 2024, before me,
Date (Here Insert Name and Title of the Officer)
personally appeared
Name (s) of Signer (s)
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 instmment 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.
Signature
Signature of Notary Public
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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 , 2024, before me,
Date (Here Insert Name and Title of the Officer)
personally appeared
Name (s) of Signer (s)
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.
Signature
Signature of Notary Public
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EXHIBIT E
FORM OF GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
CityofEmeryville
1333 Park Avenue
Emeryville, CA 94608
Attn: City Manager
NO FEE FOR RECORDING PURSUANT TO GOVERNMENT CODE SECTION 27383APNS: 049-1325-001-2
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged,Wareham Development Corporation, a California corporation (the "Grantor"), hereby grants to the City of Emeryville, a California municipal corporation (the "Grantee"), the real property (the "Property") described in Attachment No. 1 attached hereto and incorporated in this Grant Deed by this reference, together with Grantors' right, title and interest in any and all improvements thereon, subject to all liens, encumbrances, easements, covenants, conditions and restrictions, and other matters of record, including any matters shown on any subdivision or parcel map affecting the Property, all matters which would be revealed or disclosed by a physical inspection or in an accurate survey of the Property.
W WITNESS WHEREOF, this Grant Deed has been executed as of , 2024.
GRANTOR:
WAREHAM DEVELOPMENT CORPORATION,
a California corporation
By:
Name:
Its:
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 ATTACHMENT NO. 1
PROPERTY DESCRIPTION
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 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, _, 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 theforegoing paragraph is true and correct.
WITNESS my hand and official seal.
Name:
Notary Public
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Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7