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 vicinity of 59th Street that runs 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 "Pedestrian Bridge 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.
8.74 V8.83' 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 ("PlatformParcel 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 Horton 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 ]Map"). 00498\062\8868081.v7
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Exhibit C
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 Platform 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 of ES West relating to any acts or omissions of ES West under this Agreementor 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 of bodily 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 insurance advisors 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 statement in 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 identifying such 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 perfonnance of any term, covenant, condition, provision or agreement 2 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 such obligations arising under this Agreement prior to the date of such conveyance), and upon such conveyance 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. 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 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 written recordable 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 othersecurity 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 proceedingin 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 this Agreement; 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 to terminate 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
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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) Severability. The determination that any provision hereof may be void, invalid, illegal or unenforceable shall not impair any other provisions hereof and all such other provisions of this 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 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. (c) Governing Law; Venue. All matters ofconstmction 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, partnershipor 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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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: _____________________________
Adam Politzer, Interim 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:
S-2
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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 Statementmade by Emery Station West, LLC, a California limited liability company, as Grantor, to Old Republic Title Insurance Company, as Trustee, dated August 28, 2019, and filed of record onAugust 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 herebyacknowledges 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:
S-3
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 CERTAINRECORD OF SURVEY NO. 1168, FILED FOR RECORD ON DECEMBER 13,1993,ENBOOK 17 OF RECORDS OF SURVEYS AT PAGE 73, OFFICD^L 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 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 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 M 43);
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 EMERWILLE, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEING ALL OF PARCEL 3, AS SAID PARCEL IS SHOWN ON THAT CERTAIN PARCELMAP NO. 7258, FILED FOR RECORD ON AUGUST 7, 1998, IN BOOK 236 OF MAPS, AT PAGE 43, OFFICIAL RECORDS OF ALAMEDA COUNTY
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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 EMERTVD.LE, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
A portion of 59 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 59th 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 Electric Corporation, 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 59th 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 of beginning.
APN: 049-1325-002 (Portion)
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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 PARCEL MAP NO. 7258, FILED 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 C
Site Map
[See attached]
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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 ofsatisfactory 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 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 _(Seal)
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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 //;,:-,.. L- )
On ;./, -',, :.\/ '- .. : , 2024, before me, , - ' - ;. ... . ' • -^ , a Notary Public, personally appeared k. -/. • ' / k •. ; _, who proved to me on the basis ofsatisfactory 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 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 ; - r-/ '' ,-•- . , / /<'.:''.' -"' (Seal)
SANDRA L. SCHAEFFEK
Notary Public. California
Marin County
CommfsiloniX 2411110 r
My Comm. Eiciret Oct 2t, !02t
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