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HomeMy WebLinkAboutMINUTES - 02262002 - C10 ado Recorded at the request of: Contra Costa County Board of Supervisors Return to: Public Works Department Engineering Services Division Records Section THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Resolution on February 26, 2002 by the following vote: AYES: Supervisors Gerber, Uilkema, DeSaulnier, Glover, and: Gioia NOES:, None ABSENT: None ABSTAIN: None RESOLUTION NO. 2002/102 SUBJECT: Approving Deferred Improvement Agreement along Treat Boulevard for LP 2099-95, (APN 172-020-043, 044, 045 and 046),Pleasant Hill area(District IV). The Public Works Directorhas recommended that he be authorized to execute a Deferred Improvement Agreement with James Tong and Mei Fang Tong,Husband and Wife as community property and DeWitt C.Wilson and Shirley Nadine Wilson,as trustees of the DeWitt C.Wilson and Shirley Nadine Wilson Revocable Trust dated February 27, 1990, as required by the Conditions of Approval for Land Use Permit LP 2099-95. This agreement would permit' the deferment of construction of a pedestrian bridge over Treat Boulevard at Oak Road in the Pleasant Hill area. ITIS BY THE BOARD RESOLVED that the recommendation of the Public Works Director is APPROVED. I hereby certify this is a true and correct copy of an action KD:Iad G:\GrpData\EngSvc\BO\2002\2-26-02\LP 2o99-9s Bo-lz:doc taken and entered on the minutes of the Board of Supervisors Da Originator:>` Public Works(ES) on the date shown Contact: Ken Dahl(313-2351) cc: Recorder(via Clerk)then PW Records ATTESTED: FEBRUARY 2620-0-2 Current Planning,Community Development a James Tang&Mei Fong Tong JOHN SWEETEN,Clerk of the Board of Supervisors and 221'Main Street,I e Floor CountyAdmire Administrator San'Francisco,CA 94105 `l Wilson Recovable Trust 221'Main Street,I e Floor San Francisco,CA 94105 By s� 'Deputy RESOLUTION NO.2002/ 102 CONTRA COSTA Cc Recorder Office STEPHEN L SIR Clerk-Recorder Rteorded of the rep of DOC— 200 -X0063193-00 Contra Costa County Wedmuday,, FEB 27, 2002 10:55:27 Public Works Department FRERetam to: Public Works Department Tt 1 Pd SO,90 Nbr- O OT5Z321 l n&ems Services Division Records Section l r c/R 9/1»27 Area. Pleasant'li ll Road:,Treat Boulevard. Co.Road Not'4862 PennK. LP95205 t APN: 272-020-043,044,045&446 DEFER:BBD IMPROVEMENT ACtREEMENT (Permit: LP952099) THESE SIGNATURES ATTEST TO THE PARTIES'AGREEMENT HERETO: CONTRA COSTA COUNTOWNER: (See note below) Maurice M. Shia,Public Works Direct Jams ng and Mei Fong Tong, husband and wife s munity property; By: ` r es Tang R.ECOME ` ACS" OVAL: By: n ' Ces'Division Mei Fong Tang FORM APPROVED: Victor J.Westmau County Counsel DEWIT'T C. WILSON and SHIRLEY NADINE WILSON,as trustees of the DEWITT C.WILSON and SHIRLEY' NADINE WILSON REVOCABLE TRUST dated February 27, 1990 ew&C. Wilson' ,Shirley Nadii Wtlsc�n (NOTE: This documentisto be acknowledged with signatures as they appear on deed of title. if Owner is incorporat4 signatures must conform with the designated representative groups pursuant to Corporations Code §313.) (see attached notary) 1. PARTIES.Effectiveon to G""'?t D! the County of Contra Costa,hereinafter refetredto as"County"audJames Tong and Mei Fong Tong and the DeWitt C.Wilson and Shirley Nadine Wilson Revocable"Trust dated February 27,1990,hereinafter referred to as "Owner",mutually agree and promise as follows: 2; PURPOSE: Owner desires to develop the property described in Exhibit "A" attached hereto and wishes to defer construction of permanent improvements,and County agrees to such deferment if Owner constructs improvements as herein promised. 3. AGREF.MENT BINDING ON SUCCESSORS TN 123TEREST. This agreement is an instrument affecting the title or possession afire real property described in Exhibit"A." All the terms,covenants and conditions herein imposed are for the benefit of County and the real property or interest therein which constitutes the County road and highway system and shall be bending upon and inure to the benefit of the land described in Exhibit"A"and the successors in interest of Owner. Upon sale or division of the property describedin Exhibit"A",the terms of this agreement shall apply separately to each parcel,and the owner ofeach parcel shall succeed to the obligations imposed on Owner by this agreement.Upon annex tion to any city,Owner,or those who succeed him as owner of the property described in Exhibit"A,"shall fulfill all the terms of this agreement upon demand by such city as though Owner had contract with such city originally. Any annexing city shall have all rights of a third party beneficiary. 4. SUMT AND DRAINAGE IlyiPIZQV E IyiENT S: A. The improvements set forth in this section may be deferred by Owner and shall be constructed when required in the manner set forth in this agreement. The deferred improvements required by County Department of Public Works are generally described on Exhibit"B"attached hereto. Each of said improvements relate to the use,repair,maintenance or improvement of,or payment of taxes,special assessments or fees on,the property described in Exhibit"A" B. When County Public Works Director determines that there is no further reason to defer construction oftheimprovements because their construction is necessary for the public health,welfare and safety and/or is necessary to the orderly development ofthe surrounding area,he shall notify Owner in writing to commence their installation and construction. The notice shall be mailed to the current owner or owners ofthe property as shown on the latest adopted County assessment roll.The notice shall describe the work to be done by Owner,the time within which the work shall commence and the time within which the work shall be completed.All or any portion of said improvements may be required at a specified time.Each Owner shall participate on apro rata basis in the cost of the improvements to be installed. if Owner is obligated to pay a pro rata share of a cost of a facility providedby others,the notice shall include the amount to be paid and the time when payments must be made: 5. PERFQR1vI6NCE OF TI IE WORK. Owner shall perform the work and snake the payments required by County as set forth heremor as modifed by the hoard of Supervisors. Owner shall cause plans and specifications for the improvements to be prepared by competent persons legally qualifiedto do thework and shall submit said improvement plans and specifications for approval prior to commencement of the work described in the notice and to pay County inspection fees. The work shall be done in accordance with County standards in effect at the time improvement plans are submitted for approval,Owner agrees to commence and complete the work within the time specified in the notice given by the Director of Public Works and to notify the County at least 48 hours prior to start of work.In the event Owner or his successor(s)in interest fans to constrict any ofthe improvements required under this agreement,County may, at its option,do the work.Alien is hereby created on all property described in Exhibit"A"for the cost of such work.If County sues to compel performance of this agreement,to recover the cost of completing the improvements or to enforce the aforementioned lien,Owner shall pay all reasonable adtomey's fees,costs of suit and all other expenses oflitigation mourred by County in connection therewith,and said attorneys fees,costs and other uses shall also bye alien on the property described in Exhibit"A'. If the property described in Exhibit"A"is subdivided at the time said liens are imposed,the amount of saidliens shall be divided proportionately among the various parcels. Permission to enter onto the property of Owneris granted to County or its contractor as maybenecessaryto construct the improvements covered by this agreement: & .TAINT CQ(3PERATTVE PI AN. Upon notice by County,Owner agrees to cooperate with other property owners,the County,and other public agencies to provide the improvements set forth herein under a joint cooperative plan including the formation of local improvement district,if this method is feasible to secure the installation and construction of the improvements. 7. REVIEW OF REO—MENTS. If(honer disagrees with the requiretments set forth many notice to commence installation of improvements,he shall,within 30 days ofthe date the notice was mailed,request a reviewof the requirements bythe Board of Supervisors of County. The decision ofthisBoard shall'be binding upon both County and Owner. S. ACCEPTANCE OF IMPIRO'VEWNTS. County agrees to accept those improvements spec fiedta Exhibit"B"which are conshuct ed a ndcompleted in accordance with County standards and requirements and are installedwithin rights ofway or easements dedicated and accepted by resolution ofthe Board of Supervisors. Owner agrees to provide any necessary temporary drainage facilities,access road or other required improvements,to assume responsib&fy forthe proper functioning thereof,to submit plans to the appropriate County agency for review,if required,and to maintain said improvements and facilities in a manner which will preclude any hazard to life or'health or damage to adjoining property. 9: BONDS. Prior to County approval of improvement plans,Owner maybe required to execute and deliver to the County faithful"performance band and a payment bond in an amount and form acceptable to County to be released by the Board of Supervisors in whole or in part upon completion of work required and payment of all persons furnishing labor and materials in the performance ofthe work. to, INSURANCE. Owner shall maintain,or shall require any contractor engaged to perform the work to maintain,at all times du m g theperformanceof the work called for herein a separate policy of insurance in a form and amount acceptable to County. )l. Ti+TI}:i NWITY Owner shall defend,indemnify and save harmless the County,its officers,agents and employees,from every expense,liability ar payment by reason of injury(including death)to persons or damage to property suffered through any act or omission,including passive negligence or act of negligence,or both,of Owner,his developer,contractors,subcontractors,employees,agents,or anyone directly or indirectly employed by any ofthem,or arising in any way from work called for by this agreement,on any part of the premises,including those matters arising out of the deferment of permanent drainage facilities or the adequacy,safety,use or non-use of temporary drainage facilities,or the performance or nonperformance of the work. This provision shalluot be deemed to require the Owner to indemnify the County against the liability for dsrnage'arisir j from the sale negligence or willful misconduct ofthe County orits agents,servants,or independent contractors who are directly responsible to the •u,Aty. 12. INCORPORATION OF COST ALLOCATION AGREEMENT. On October 12, 2000, a Coat Allocation Agreement was entered into by and between Fera Urban West Corporation, Leisure Sports, Inc. , Contra Costa County, and the Contra Costa County Redevelopment Agency. Said Cost Allocation Agreement is attached hereto as Exhibit 'C'' and incorporated herein by reference as though fully set forth herein. 13. Leisure Sports, Inc. has assigned and W.C. Walnut Creek, L.L.C., a wholly owned subsidiary of Leisure Sports, Inc, has assumed all of the rights and obligations of Leisure Sports, Inc. in and to the property. The Assignment is attached hereto as Exhibit 'D' . CALIFORNIA. ALL-PURPOSE ACKNOWLEDGEMENT 7swo of 4"r„f 11.1 OPTIONAI.SECTION County:�� �....._ CAPACITY CLAIMED BY SIGNER on d` #»)�before me; Jir«i►'�i7 ' d� ThonZlt statute does not require the Notary to uu ltt DATE N -1 yrLE OF OFFICER R E.G,°ANE DOE,NOTARY FU$LIC the dale below,dolatg so may prove invaluable to persons relying on the document cat personally app .rAo�w,g ', Dr s rr INDIVIDUAL V personally'known to me-OR-tl proved tome on the basis of satisfadory evidence to 0 CORPORATE OFFICER(S) be the person(s)whose name(s)Ware TrME(s) subscribedtothewithin instrument and acknowledged to me that hatshevibey executed p PARTNER(S) 0 LIMITED SANDY J.SGNNElC1� the same fe),and bheir authorized ❑ GENERAL Qcapacity(ies),atxd that by histherhheir 0 ATTORNEY-IN-FACT COMM1531on#1241604 signature(s)on the instrument the person(s)or ❑ TRUSTEE(S) Notay Pubk Crsl�t ' the entity upon behalf ofwhich the Peism(s) 0 GUARDIANICONSERVATOR Ak meta County acted,executed the instrument.. 0 O'T'HER' W C APr2Z I AVrrNFSS my hand apd official seal, SIGNER IS REPRESENTING- (NAM OF PERSONM OR ENTfI GES)} S3 O NOTARY OPTIONAL,SECTION THIS CERTIFICATE MUST BE ATTACHED Title or Type of Document TO THE DOCUWNTAT RIGHT. Number of Pages Though the data below'isnot required by law,it may prove valuable Date of Document to persons relying,on the document and couldprevent fraudulent Signer(s)'Other Than Named Above re-attadmusit ofthis form -- INSTRUCDONS TO NOTARY The following information is provided in an effort to expedite processing of the documents. Signatures required on documents must comply with the following to be acceptable to Contra Costa County. 1. FOR ALL SIGNATURES_ -The name and interest of the signer should be typed or printed$ENEATH the signature. The name must be signed exactly as it is typed or printed. Il. SIGNATURES FOR INDIVIDUALS The name must be signed exactly as it is printed or typed. The signer's interest in the property must be stated. in. SIGNATURES FOR PARTNERSHIPS - Signing party must be either a general partner or be authorized in writing to have the authority to sign for and bind ene partnership: IV. SIGNATURES FOR ORATIONS Documents'Should be signed by two ^irs,one from each of the following two groups: GROUP I. (a,The Chair of the Board MThe President Any Vice-President GROUP 2. daThe Secretary An Assistant SecretaThe Chief Financial�cer The Assistant Treasurer If signatures of officers from each of the above two groups do not appear on the instrument, a certified copyof a resolution of the Board of Directors authorizing the u person si g the instrument execute instruments of the type in question is required.A currently valid power of attorney,notarized,'will Notarization of only one corporate signature or signatures from only one group,:must contain the following phrase: .and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of L3irectors." XMW \it'WS*SHARDATA\(kpMts\EMSvc\Fom*\WORD FORMS\ALL P€7RPOSE'NOTARY.doe Rev.May 3.1999 EXHMBIT A PROPERTY LEGAL DESCRIPTION "The property which is the subject of this agreement, consists of Lots 2,3, 4,and 5 as shown on the Map of Subdivision 6907, filed August 17, 1988, Map Book 324, Page 27,Contra Costa County Records,as amended by Certificate of Correction recorded October 24, 1988, Boob 14669, Page 927, Oficial Records." s EXHIBIT B RE': 2501RZ LP952099` UP953089 IMPROVEMENTS Improvements required by Contra Costa County Community Development Department and the County Ordinance Code as Condition of Approval 21(A),'(9),and (C)for the above referenced Development Plan are located at Treat Blvd.and Oak Road between parcels 148-250-071,and PARCELS 172-020-042,043,044,045,AND 046, the latter five of which is the property of the Owner,and is described in Exhibit A. The improvement is a pedestrian overcrossin8 of Treat Blvd. from the subject property,north to parcel 148-025-071,and north to property owned"by the;.Bay Area Rapid Transit District(BART). The Owner is required to finance 50%of the cost of constructing the pedestrian bridge. Construction costs include,but are not limited to,preliminary design,design,environmental clearances,permits,construction management,financing,and construction. Specifications and construction of the pedestrian bridge are subject to the review and approval of the County. The Owner maybe required to advance funds to the County to cover costs associated with preliminary design and engineering,and community participation related thereto;said advanced are credited against the 50% obligation of the Owner. The County shall request the advance in writing, and the advance shall be provided to the County in no more than 30 days. CONSTRUCTION Any necessary relocation of utility facilities shall be the responsibility of the Owner or his agent. The construction of the above-deferred improvement shall begin when either of the following occurs: 1. Development on parcel 148-250-071 (the BART joint development property,south lot)occurs. A Joint Development Agreement between the Owner and the developer of the BART property shall be entered into. Said Agreement shall identify roles,responsibility,and schedule for implementation of the Improvement provided for herein. 2. The County Redevelopment Agency agrees and is able to advance funds for the BAPT property in advance of an identified development on the site. MAINTENANCE An agreement that assures that the Owner will provide for their fair share of maintenance of the Improvements,as specified in condition of approval #32 for Final Development Pian,Plan 95-3089. W:Personal\PHBART\ExhibitB.3.01 EXHIBIT C COST ALLOCATION AGRF..II4ENT COST ALLOCATION AGREEMENT FOR PEDESTRIAN OVER-CROSSING OF TREAT BOULEVARD NEAR OAK ROAD This Cost Allocation Agreement(the"Agreement") is being'executed as of � Z -�• �? 2000, by and between Pera Urban West Corp., a Delaware corporation("Tera Urban West"), Leisure Sports,Inc., a California corporation("LSI"),the County of Contra Costa("the County"), and the Contra Costa County Redevelopment Agency ("Redevelopment Agency"). RECITALS 1. The property which is the subject of this agreement consists of Lots 1,2, 3,4 and 5 as shown on the Map of Subdivision 6907, filed August 17, 1988, Map Book 32.4, Page 27, Contra Costa County Records, as amended by Certificate of Correction recorded October 24, 1988,Book 14669, Page 927, Official Records. 2. Pera Urban West is the owner of the land and improvements consisting of an office building and adjacent parking garage located at 1350 Treat Boulevard, Walnut Creek, California;(Phase I of the Urban West Business Park located on Lot 1 of the property described above.) 3. LSI is the long-term leaseholder of a Ground Lease and developer of the proposed Hotel/Health Club facility and garage which has been approved and;permitted subject to certain Conditions of Approval by Contra Costa County on the remaining parcels(Phases 11, 111 and IV) of the Urban gest Business Park located on Lots 2, 3, 4 and 5 of the;property described above, immediately adjacent to Pera Urban West's property_ Pera Urban West's property and LSI's leasehold are collectively referred to as Area 15. G:\D0CS\20445\003\Cost Allocation Agreement-final l' INITIAL . Oct '1 o 00 04: 00p ADOGf (4 15) 543-4040 4. The proposed Treat Boulevard pedestrian over-crossing C the over-crossing') is to be completed when requested by the County. LSI and Peres Urban West are each required, pursuant.to their Conditions of Approval as imposed by the County,to make Area 15's contribution to the completion'of the aver-crossing, S. Pursuant to paragraph 2IC of the Conditions.of Approval for its project,LSI has submitted a conceptual proposal for the location'and design of the over-crossing. The Redevelopment Agency has undertaken the Community Design phase of the project. 6. The Redevelopment Agency worlring with the County's Community Development and Public Works Departments has preliminarily estimated that the contribution of the Area 15 property owners to the over-crossing project will be: (a) Cash in the amount of$800,000 ("the estimated costs"). This amount is subject to change since the over-crossing may not be built for a number of years and the final cost may be affected by inflation and other factors. Any change however is limited by the"not to exceed"provision in paragraph 9 below. (b) A grant of easement by the property owner to the County to permit the location of the support post for the south end of the project and additionally,the cooperation of the property owner in permitting modification of its existing handicapped access ramps and stairways to accommodate the over-crossing("the easements') The above contributions represent Area 15's one-half participation in the estimated cost for an "off-the-shelf'bridge design. The contributions will'be bowie by the parties as follows; Pera urban West: the easements G_\DOCS12044RO031Cost Allocation Agreemurt-final 2 INITIAL, y LSL the estimated costs The Comity,through the Redevelopment Agency,agrees to be responsible for funding the incremental difference between a standard"off=the-slier'design and a"signature"or enhanced design for the over-crossing. AGREEMENT In order to satisfy Area 15`s contribution to completion of the over-crossing,IT IS HEREBY AGREED: 7. Subject to its approval of the final design and the form of the Easement Agreement, which approval will not unreasonably be withheld, Pera Urban West will; (A) Grant to the County an easement to permit the location of the support post for the over-crossing on the south side of Treat Boulevard on its property(as generally shown on Exhibit`"A") it accordance with the approved design within thirty(30) days of notification by the County of completion of the final design for the over-crossing and identification of the location for the support post. (B)Allow handicapped access to the pedestrian over-crossing by permitting; modifications to its existinghandicapped access ramp as detailed by the final design:. (C)Permit the County to modify as necessary the stairway from its building to the Oak/Treat intersection, including the handicapped access ramps,and to modify other improvements as necessary to accommodate the over-crossing connection to the existing pedestrian plaza located on its property in accordance with the final'design as approved by Pera Urban West. G:\DOCS\20445NO03\Cost Allocation Agreement-final 3 INITIAL, 8. The Redevelopment Agency agrees that the easement for the support post and the permission by Pera Urban Nest for the County to modify the handicapped access ramp,the stairway and the pedestrian plaza to accommodate the Over-crossing fully satisfies Fera Urban West's share of the contribution required from Area`15. 9. LSI,in addition to submitting the conceptual proposal for the location:and design of the over-crossing,shall pay to the County in cash the one-half of the final approved estimate for a standard"off-'the-shelf'design required of the property owners from Area 15. Said amount will be due and payable within 60 days of notice to LST by the County of its intent to commence construction of the over-crossing. Neither Pera Urban"West nor LSI shall have any responsibility with regard to the obligation of the property owner or owners north of Treat Boulevard to pay the remaining cine-half of the final approved estimate for a standard'"off=the "off-the- shelf'design. The final approved estimate shall not exceed$1,600,000 as of January 1, 2001, which amount may be increased annually thereafter only in an amount equal to the increase in the Engineering News-Record San Francisco Area Construction Cost.Index. 10. The Redevelopment Agency will fund the incremental difference between the estimated cost of a standard"off-the-shelf'design and.a"signature"or enhanced design. 11. Pera Urban West agrees that if during the design phase of the over-crossing it seeks adjustments to the design that are primarily of benefit to Pera Urban West the costs of such adjustments will be paid by Pera Urban West. However, if adjustments are requested by Pera Urban West primarily because the original design by the County would adversely affect Pera Urban West's normal use of its property, the costs of any such adjustments and redesign will be paid by the County.' G-,\DOCS 20445\0G31CostAllocation Agreement-final 4 INITIAL 12. Breach: A. By Pera Urban West: The County shall give Pera Urban'West 10 days notice to execute the easement documents after all the parties have approved the final design and easement documents; The failure or refusal by Pera Urban West to timely grant the easement for the;support post for the over-crossing and/or to permit modifications in accordance with the final approved plans to its handicapped access'ramp, stairway and/or pedestrian plaza shall be deemed to be an immediate default without the necessity of notice or cure rights with respect to that or any other default. B. By LSI: The failure or refusal by LSI to pay its share of the Area 15 contribution in cash as set forth in the agreement,shall be deemed an immediate default without the necessity of notice or cure rights with respect to that or any other default. 13. Remedies: A. Pera Urban Nest's Default: IF THE COUNTY SUCCESSFULLY BRINGS' AN ACTION IN COURT TO COMPED PERA URBAN WEST TO GRANT THE EASEMENT FOR THE SUPPORT POST FOR THE COVER-CROSSING AND/OR TO PERMIT MODIFICATION IN ACCORDANCE WITH THE FINAL APPROVED PLANS TO ITS HANDICAPPED ACCESS RAMP, STAIRWAY AND/OR PEDESTRIAN PLANA,THEN IN ADDITION TO COMPELLING SAID COOPERATION,THE COUNTY MAY SEEK DAMAGES EQUAL TO ONE-FOURTH(1/4) OF THE AREA 15 CONTRIBUTION TO THE FINAL 'ESTIMATED COST OF THE STANDARD OF"Off-THE-SHELF" DESIGN. INITIALS: PERA URBAN WEST CONTRA COSTA COUNTY B. LSI's Default: IN THE EVENT OF: (A)LSI'S FAILLiRE TO TIMELY G:\DOCS\20445\003\Cost Allocation Agreement-final 5 INITIA 12. Breach: A. By Pera Urban West: The County shah give Pers.Urban West 10 days notice to execute the easement documents after all the parties have approved the final design and easement documents. The failure or refusal by Pera Urban West to timely grant the easement for the support past for the over-crossing and/car to pe fit modifications in accordance:with the final approved plaits to its handicapped access ramp,stairway and/or'pedestrian plaza shall be deemed to be an immediate'default without the necessity of notice or cure rights with respect to that or any other default. B. By LSI. The failure or refusal by LSI to pay its share of the Area 15 contribution in cash as set forth in the agreement, shall be deemed an immediate default without the necessity of notice or cure rights with respect to that or any other default. 13. Remedies: A. Pera Urban West's Default: IF THE COUNTY SUCCESSFULLY BRINGS AN ACTION IN COURT TO COMPEL PERA,URBAN WEST'TO GRANT THE EASEMENT FOR THE SUPPORT POST FOR THE OVER.-CROSSING AND/OR TO PERMIT MODIFICATION IN ACCORDANCE WITH THE FINAL APPROVED PLANS TO ITS HANDICAPPED ACCESS RAMP,S'T'AIRWAY AND/OR PEDESTRIAN PLAZA, THEN IN ADDITION TO COMPELLING SAID COOPERATION,THE COUNTY MAY SEEK. DAMAGES EQUAL TO ONE-FOURTH(1/4)OF THE AREA 15 CONTRIBUTION TO THE FINAL ESTIMATED COST OF THE STANDARD OF"Off-THE-SHELF" DESIGN. INITIALS: PERA URBAN WEST CONTRA COSTA COUNT B. LSI's Default: IN THE EVENT OF: (A)LSI'S FAILURE TO TIMELY G-.\DOCM0445\003XCost Allocation Agreement-final: 5 INITIAL> PERFORM ITS OBLIGATIONS HEREUNDER OR(B)THE TERMINATION OF THE PROJECTBY LSI FOR WHATEVER REASON;THE COUNTY SHALL BE ENTITLED TO PURSUE ITS REMEDIES AT LAW OR IN EQUITY. 14.` Exclusive Remedies:The County may enforce the obligations of Pera Urban West only against Pera Urban Nest and not against LSI which shall Have no responsibility therefor. The County may enforce the obligations of LSI only against LSI and not against Pera Urban West which shall have no responsibility therefor. 15. Limited Liability: The obligations and liabilities of Pera Urban West and LSI hereunder are intended to be binding only on the property or leasehold of each described'above and shall not be personally binding upon,nor shall any resort be had to,the private property of any partners,joint venture partners, or any officers, directors of shareholders thereof,or members of a limited liability company,or any employees or agents of Pera Urban West or LSI. If the owner of any property in Area 15 transfers its interest in the property,the liability for its obligations Herein shall be solely that of the transferee as to any obligations'that accrue after such transfer. 16. Authority: Each party hereby represents and warrants to the other parties that (a) each party has full'power and lawful authority to enter into and carry out the terns'and conditions of this agreement and to execute and deliver all documents which are contemplated by this agreement, and(b)all actions necessary to confer such power and authority upon the persons: executing this agreement and all documents which are contemplated by this agreement to be executed on behalf of each party have been taken. 17. Agreement Runs with the Land: This Agreement runs with the land A GAD0CS120445t0031Cost Allocation Agreement-final 6, INIT[ Memorandum of Agreement shall be recorded in the County's Oficial Records. 18. Notices: All written notices required to be given pursuant to the terms hereof shall e either(a)personally delivered, (b)deposited in the United States mail, registered-or certified return receipt requested,postage prepaid,(c)sent by Federal Express or similar nationally recognized overnight courier service, or(d)transmitted by facsimile with a hard copy sent within one(1),business day by any of the foregoing means,and addressed as follows: To Pera Urban West: Pera Urban West Corp: c/o Jones Lang LaSalle 1350 Treat Boulevard, Suite 170 Walnut Creek, CA 94596 Attn: GeneralManager' Fax#:`925-468-0434" To LSI: Leisure Sports, Inc. 7077 Koll Center Parkway, Suite 110 Pleasanton, CA 94566 Attn: Patrick J. O'Brien Fax#:925-600-1144 To Contra Costa County ContraCostaCounty Community Development Department 651 Pine Street,4th Floor,North Wing Martinez,CA 94553-0095 Attn- Deputy Director of Redevelopment Fax# 925-335-1265 To Contra Costa County Contra Costa County Redevelopment Agency Community Development Department 651 Pine Street,4th Floor,North Wing Martinez,CA 94553-0095 Attn: Deputy Director of Redevelopment -Fax#': 925-335-1265 The foregoing addresses may be changed from time to time by written notice. Notices G:\D0CS120445M3\Cost Allocation Agreement-final INITIAL shall be deemed received upon the earlier of actual receipt or delivery(or refusal to,accept delivery)or,in the case of notices sent by mail,three(3)days following sending as provided above. 19. Time: Time is of the essence in the performance of the parties' respective obligations herein contained. 20. Attorneys' Fees: Ifany'legal action or any other proceeding, including arbitration, or action for declaratory relief, is brought for the enforcement of this agreement,or to cause an alleged dispute,breach, default,or misrepresentation in connection with any of the provisions of this agreement, the prevailing party shall be entitled to recover reasonable attorney's fees and other casts incurred in that action or preceeding, in addition to any other relief to which it may be entitled. "Prevailing party"shall include without limitation.(a) a'party who dismisses an action in exchange for sums allegedly due; (b)the party that receives performance from the other party of an alleged breach of covenant or a desired remedy where this is substantially equal to the relief sought in an action;or(c)the party determined to be the prevailing party by a court of law." 21. Construction: The parties acknowledge that each party and its counsel have reviewed and revised this agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretationof this agreement or any amendments or exhibits hereto, 22_ Goyermng_Law:This agreement shall be construed and interpreted in accordance with and shaft be governed and enforced in all respects according to the laws of the State of California. Any action to enforce or interpret the provisions of this agreement maybe commenced in the courts of the State of California,and venue for the purpose of any action in G.\DOCS120445\003\Cost Allocation Agreement-final 8 INITIAL connection with this agreement or any document referred to herein shalt be in the County of ContraCosta_ 23._ Amendments: This agreement may be amended or modified only by a written instrument signed by the County and by either Pera Urban West or LSI'or both as may be appropriate for said amendment or modification. Any amendment which adversely affects the rights of a party must have the written agreement of the party adversely'affected to be effective; 24. Counterparts: This agreement may be executed in one or more counterparts, including counterparts executed by facsimile transmission. All counterparts so executed shall constitute one contract,binding on all parties,even though all parties are not signatory to the ssame counterpart. 25. Entire Agreement: This agreement,when executed,contains the entire understanding of the parties and supersedes any and all other written or oral understanding. IN WITLESS WHEREOF, Pera Urban West,LSI and Centra Costa County have executed.this Cost Allocation Agreement as of the date first written above. PERA URBAN WEST CORP. A Delaware Corporation By: Its: o sr` ' LEISURE SPORTS,INC, A California Corporation By: Patrick J. O'Brien Its: G:ED0CSl20445\0031Cost Allocation Agreement-final 9 INITIAL connection with this agreement or any document referred to herein shall be in the County of Contra Costa, 23. Amendments: This agreement may be amended or modified only by a written instrument signed by the County and by either Pera Urban West or LSI or both as may be appropriate for said amendment or modification. Any amendment which adversely affects the rights of a party must have the written agreement of the party adversely affected to be effective. 24. Counterparts: This agreement may executed in one or more counterparts, including counterparts executed by facsimile transmission. All counterparts so executed shall constitute one contract,binding on all parties,even though all parties are not signatory to the ssae counterpart. 25. Entire Agreement:This agreement,when executed,contains the entire understanding of the parties and supersedes any and all other written or oral understanding. IN WITNESS WHEREOF,Pera Urban West, LSI and Contra Costa County have executed this Cost Allocation Agreement as of the date first written above. PERA URBAN WEST CORP. A Delaware Corporation By: Its: LEISURE SPORTS,INC. A California Corporation BY(7 Q�)11?4�7 Patric J. Brien Its: G:\DOCSt20445\003\Cost Allocation Agreement-final 9 INITIAL connection with this agreement or any document referred to herein:shall be in the County of Contra Costa. 23. Amendments:This agreement may be amended or modified only by a written instrument signed by the County and by either Tera Urban West or LSI or both as may be appropriate for said amendment or modification. Any amendment which adversely affects the rights of party must have the written agreement of the party adversely affected to be;effective. 24. Counternartts This agreement may be executed in one or more counterparts, including counterparts executed by facsimile transmission. All counterparts so executed shall constitute one contract, binding on all parties,even though all parties are not signatory to the ssame counterpart. 25. Entire Agreement: This agreement, when executed,contains the entire understanding of the parties and supersedes any and all other written or oral understanding. IN WITNESS WHEREOF,Tera urban West,LSI and Contra Costa County have executed this Cost Allocation Agreementas of the date first written above: PERA URBANE WEST CORP. A Delaware Corporation By: Its: LEISURE SPORTS,INC. A California Corporation By: Patrick J.O'Brien Its: G-'ND0CS\24445\003\Cost Allocation Agreement-final 9 XNITIA CONTRA.COSTA COUNTY By: James e edy Its: epu Director o e elopment CONTRA COSTA COUNTY REDEVELOPMENT AGENCY By:_ fedevelopmen to of GAD0Cst20445\003tCost Allocation Agreement-final 10 INZTIA EXBIBIT D ASSIGNMENT AND ASSUMPTION OF GROUND LEASE TFHS ASSIGNMENT AND ASSUMPTION OF GROUND.LEASE(this "Assignment") is executed as of April 3, 2001 '("Effective Date")by LEISURE SPORTS, INC., a California corporation("Assignor") in favor of W.C. WALNUT CREEK,L.L.C., a Delaware Limited Liability Company ("Assignee"), with reference to the following: RECITALS: A. Jaynes Tong, as "Landlord", and Leisure Sports,Inc., as"'T'enant",executed a Ground Lease on April 9, 1999 (the"Ground Lease"),a`Memorandum of which was recorded on November 17; 1999 as Document No. 1999-0302040-00,Official Records of Contra Costa County, California. A "First Amendment to Ground Lease'was entered into by the parties on April 25,2000, which among other things, corrected the name of the Landlord from James Toner to James Tong and Mei Fong Tong. An amendment to the Memorandum naming James Tong and Mei Fong Tong as"Landlord"was recorded on May 26, 2000 on Document Nes. 2000- 0108353-00, Official Records of Contra Costa County,California. On September 14, 2000,' James Tona and Mei Fang Tong executed a Grant Deed conveying an undivided 24% interest in the property which is the subject of the Ground Lease to DeWitt C. Wilson and Shirley Nadine Wilson, as Trustees of the DeWitt C.Wilson and Shirley Nadine Wilson Revocable Trust dated' 032127/90. In this Assignment, James Tong,Mei Fong Tong, DeWitt C Wilson and Shirley Nadine Wilson, are collectively referred to as"Lessor." A"Second Amendment to Ground Lease"was entered into by Leisure Sports,Inc. and the Tongs on March 5, 2001,which added "Section 5.12. Lender Protections." A copy of the Master Lease and of the First and Second G.U)o&20445=AAzignment re WC Watnnt 1 Apn19,2001 Amendments thereto are attached to this Assignment as Exhibit"A"and incorporated into this Assignment by this reference. B. Pursuant to and subject to the terms and conditions of that certain Ground Lease, .Assignor desires to transfer all of its right,title and interest in and to the Ground Lease to Assignee, and Assi€rnee desires to accept such Assignment and to assume, exercise and be bound by all of the terms and conditions of the Ground Lease. NOW,THEREFORE, in consideration of the foregoing recitals and for other valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties hereto agree as follows: 1. Assignment and Assusnution. As of the Effective Date,Assigner hereby assigns, conveys,transfers and sets over onto Assignee,and Assignee assumes all of Assignor's right, title and interest in and to the Ground Lease under the terms contained therein: 2, Governing Law. This Assignment shall be construed under and enforced in accordance with the laves of the State of California. 3. further Assurances. Assignor agrees to execute and cwliver to Assignee, upon demand, such further documents, instrumentsand conveyances, and shall take such<further actions, as are necessary or desirable to effectuate this Assignment. 4. Successors-'.and Assigns: This Assignment shall enure to the benefit of, and be binding upon,the successors,executors,administrators, legal representatives and assigns of the parties hereto. IN WITNESS VMEREOF,as of the date first set forth above,Assignor has executed this Assignment and Assignee has accepted and assumedall of Assignor's right, title and interest in G-ND cst2W51003%A&%gnm=tm WC Walnut 2 Ap�i13,2001 and to the Ground Lease as set forth herein. Assignor: Assignee:' LEISURE SPORTS,INC: W.C. WALNUT CREEK,L.L.C. A California Corporation A Delaware Limited Liability Company By: C rj By: R , — Patrick J. CKBrien Leisure Sports,Inc. Its Chief Financial Officer Its Managing Member y Patrick J.` 'Brien Its; Chief Financial Officer CONSENT OF LESSOR The Assignment of the Ground Lease dated April 9,1999,as amended from Leisure Sports, Inc. to W.C. Walnut Creek, L.L.C.,is hereby approved and consented to as of the effective dateset forth therein. Darn ng Mei Fong Tong i De itt C. Wilson d Shirley Nadine Wilson, as Trustees of the DeWitt C. Wilson and Shirley Nadine Wilson Revocable Trust Dated 02/27/90 G*\Docsl2S?4+15=3\ssig==d re we walnut 3 April 9.240E State of California RIGHT THUMBPRINT(Optional) County of Al z On 5/24/01 before mertbtanE Pub) � IOkTEi : WAMrfnTLE OF OFFlCER�-s.`JANE DOE.NOTARY MBUC'i n:.. _..c.... personally appeared **Patrick J. O'Brien** WAM'.E(SI OF SIGNERt5ll ickteics it*irk c rk� *4rrF3c�t 3 CAPACITY CLAIMED BY SiGNERIS) OINDIVIDUAL($I OCORPORATE `personally knowfwf to me -OR--El proved to me' on the o("FICERtsr basis of satisfactory evidence to be the OPARTNER(S) OLIMITED personA whose name(w) OGENERAL i' JOSEPH S'TMYJFL Islam subscribed to the CA'TTORNEY IN FACT COMMISSION 122=5 within instrument t nd CITztUSTEEf�f rPI UARDIANtCONSERVATOR NOTARY PI�LICrC/ItfF(JRN#A acknowledged to,methat ALAMEDA ©OTHER: loco"s �ro�llil+►�.�rf~zoaf ' he���� exeeutecl the same in his/lao4their authorized f:,apa(�ity( }, SIGNER is REPRESENTING: and that by hisl #a §ig nature** on the tName or Porconfsl or Entity(iasl instrument-the person(@4r or the entity.upon behalf of which the person{s} ' j acted, executed the instrument. RIGHT THUM6PRINT(Optional# 1 Witness my hand and official'seal. m (SEAL} ' (SIGNATURE OF NO A Y) ~ l( JOMPH STELLY, JR.' CAPACITY CLAIMED BY SIGNER(S). DINDIVIDUAL(S) 000RPORA7E II ATTENTION NOTARY OFFICER(S) The information requested below and in the column to the right is OPTIONAL. rntc�s� Recording of this document is not required by law and is also optional_ It could, however, prevent fraudulent attachment of this certificate to any 0PARTNERtsl OLIMITEO i unauthorized document. (GENERAL CIATTORNEY IN FACT THIS CERTIFICATE TakorType of Documeent OTRUSTEEM) MUST BE ATTACHED 0GUARDIANfCONSERVATOR TO THE DOCUMENT Number of Pages Date of Document OOTHER: DESCRIBED AT RIGHT: Signerls)Other Than Named Above SIGNER is REPRESENTING: (Name of Personfs)or Entityliesl WOLCOTTS FORM$3237 ReV>344 4WIM dives 8-200 01994 YIAOLCOTTS fOAMS.INC. ALl:ptiRfOSEJtC'KNO'WCECfGMENTfORCALtFflrtNMYy17N53GNE(tCAPAC17YXtEPRESENTA71ONfIWOfINGEHf'R#N75 . 7 67775 ;63237 8'' State of California RIGHT 7t3t1MBf'H1N7(Options[) County of AI.aITa s- x On 5/24/01 before me,Jcrse h stretly, jr., Not ry Rabl )DATE) INAMVnTLE OF OFFtGER-).*.'JANE DOE.NOTARY PMtIC'I � ;personally appeared **Patrick J. O'Brien** tNAMEISI OF SFGNERtSII �Fot *krotir*k krti*�Y�ck7E *3r cir CAPACITY CLAIMED BY SIGNER(s) OINDIVIDUAL€S)' OCORPORATE personally kndwh'to me _OR- 0proved toale on the OFFICERM) basis of satisfactory _ evidence to be the OPARTTIER(S) OLIWED person4ml whose name(m4 €:IGENERAL is/ subscribed to the DA"rrOANEY IN FACT JOSEPH STELLY FL within instrument and 13TRUSTEE€s) COMMISSION 1acknowledged to methat OGUAR{NAN/CONSERVATOR NOTARY PUSUC-CAIL11iRNIA heAsA@Ik4ar executed the Go tt ;uAMEtiacO€If rr same in his/h&4A* it authorized capacity(*S.), SIGNER Is REPRESENTING: and that by his/li r SIGNE of REPRESENTING: or ING:fias) signature} on the instrument the person(*4, or the entity upon behalf of which the person(s) acted, executed the instrument. RIGHT THUMBPAWT€optional) Witness my hand and official seal. z (SEAL) a JOSE; (SIGNATURE OF NO ARY H STELL i, JR. CAPACITY CLAIMED BY SIGI+IEftIS) OINDIVIDUALISI OCORPORATE ATTENTION NOTARY OFFICER(S) The information requested below and in the column to the right is OPTIONAL. anxtest Recording of this document is not required;by law and is also optional. It could, however, prevent fraudulent attachment of this"certificate to any COPARTNER(S) ULIMITEtJ unauthorized document. [)GENERAL OATTOtNEY IN FACT THIS CERTIFICATE Title or Type of Domment OTRVST€E(S) MUST BE ATTACHED OGUARDIANICONSERVATOR TO THE DOCUMENT NumberoflPages Date of Document OOTHER: DESCRIBED AT RfGHT- Signer(s)Utter Than Named Above SIGNER IS REPRESENTING: (Name of Personfsl or Entityfleci WOLCOTT$FORM 831237 Rev.3-94 tarim dress 9-21M 01994 WOLCOTTS FORMS INC. ALL Pt.NtPCSSE ACKNOWLEDGMENT FOR GAUFOIINIR WITH 51l:NFII GAP�4CtTY1RERftESEt#'rATtbttEYiMO t9NGERPRSN75 z b7775 63237