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 is located 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 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 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 way along 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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Exhibit D
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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 sendent 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 any 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 ordeath of any person or damage to property, to the extent arising out of or incurred as a consequenceof 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 every other 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 the general 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 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 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 thedate 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 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.
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 other similar 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 instrument.
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
Docusign Envelope ID: E0190A9E-E9B2-4ED0-A793-97C945DAEDA7 EM WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
WAREHAM DEVELOPMENT
CORPORATION,
a California corporation
By:
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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:
By: _____________________________
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 EMERYVELLE, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, DESCRTOED AS FOLLOWS:
BEING A PORTION OF 59TH STREET AS SAID AS SHOWN ON THAT CERTAIN RECORD OF SURVEY NO. 1168, FD.ED FOR RECORD ON DECEMBER 13,1993, INBOOK 17 OF RECORDS OF SURVEYS AT PAGE 73, OFFICIAL RECORDS OF ALAMEDA COUNTY, BELNG MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LWE OF LANDREGAN STREET (WIDTH VAMES), 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, OFFICIALRECORDS 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 LINEOF LOT 1, AS SAID LOT IS SHOWN ON THAT CERTAIN MAP OF TRACT 7353, FILEDFOR 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 RADmS 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 LWE OF SAID PARCEL 2, NORTH 75° 40' 00" EAST, 214.59 FEET TO THE POINT OF BEGINNING.
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EXHIBIT B
DESCRIPTION OF AIR SPACE PARCEL
ALL THAT CERTAIN REAL PROPERTY SITUATE EN THE CITY OF EMERWILLE, 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 and have, 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 per occurrence, $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 insurance or 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 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 notwaive City's right to require them, or WDC's obligation to provide them. The City reserves theright 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 affectthis waiver of subrogation from its insurer, but this provision applies regardless of whether or not the 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 truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTy OF '/'l-,^,. )
On UH ^ 2 i,2024, before me,
-' Date
personally appeared R
(Here Insert Nam'e and Title of the Officer)
/ 7.
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 in his/her/their authorized capacity(ies), and that by his/her/their signatire(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 trueand correct.
WITNESS my hand and official seal.
SANDRAL.SCHAEFFER
Notary Public - California
Martn County
Commission K 2418810
My Comm. Expires Oct 26, 2026
Signature .:':'/. • ^l ".,''<..
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 truthfutoess, 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 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 PERIURY 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 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 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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