HomeMy WebLinkAboutRESOLUTIONS - 01012002 - 2002-102 0
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 Director has recommended that he be authorized to execute a Deferred
Improvement Agreement with James Tong and Mei Fong 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.
IT IS BY THE BOARD RESOLVED that the recommendation ofthe Public Works Director
is APPROVED.
I hereby certify that this is a true and correct copy of an action
KD:IadDatalEngSvclBt?\200212-2G 021LP 2099-95 BO-12.doc taken and entered on the minutes of the Board of Supervisors
I7:lad
Originator: Public Works(ES) on the date shown
Contact: Ken Dahl(313-2351)
cc: Recorder(via Clerk)then PW Records ATTESTED: FEBRUARY 26 ; 2C}02
Current Planning,Community Development
James Tang&Mei Fang`long JOHN SWEETEN,Clerk of the Board of Supervisors and
221 Main Street,160 Floor
San Francisco,CA 94105 County Administrator
Wilson Recovable Trust
221 Main Street,I e Floor
San Francisco,CA 94105 By ' ,Deputy
RESOLUTION NO.2002/ l02
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CONTRA COSTA
STEM L, W1CoIR ReClerorkder-;R Of f it~e
or'er
Recorded at the request of:
DOC— X00 —00 08193-00
Camra Cost.County W*dnasday, FEB 27, 2002 10:55:27
Public Works DWartmenR FRE $9.00
Return to: T l Pd
Public Works Dwart-ait $0,08 Nbr- 752321
Fnginami xg Services Division
Reoo�Section t r c!R�l 1—27
Ares: Plmmrt I ill
Recd: 'Tr .$otrle'vwd
Co.Road No: 4861
Pernnit: LP952099
APN: 172-024-043,044,045 8s 046
DEFERRED IMPROVF..MENT AGREENiE NT
(Permit: LP952099)
THESE SIGNATURES ATTEST TO THE PARTIES'AGREEMENT HERETO:
CONTRA COSTA COUNTY {3WNEIL (See note below)
Maurice M. Shiu,Public Warks Direct Jam ong and Mei Fong Tang, husband and
wife s munity property.
By: {.
es Tong
RECOMME AP OVAL.
By:
ngi ices Division Mei Fong Tong
FORM APPROVED: Victor J.Westman,County Counsel DEWITT C. WILSON and SHIRLEY
NADINE WILSON,as trustees of the
DEWITT C. WILSON and SHIRLEY
NADINE WILSON REVOCABLE TRUST
dated February 27, 1"0
t.
gemift C. Wilson
Shirley Nad' W11son
(NOTE: This document is to be acknowledged with signatures as they
appm on deed of title. towner is incorporated,signatures must conform
with the&4natcd representative groups pursuant to Corporations Code
§313.)
(see attached notary)
I
1. PARTIES. Effective on to the County of Contra Costa,hereinafter referred to as"County"and Jarnes
Tong and Mei hong 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. AGREEMENT BrNDING ON SUCCESSORS IN DM REST. This agreement is an instrument affecting the title or possession oftho 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 binding 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 described in Exhibit"A",the terms of this agreement shall apply separately to each parcel,and the
owner of each parcel shall succeed to the obligations imposed on Owner by this agreement.Upon annexation 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. STREET AND DRAINAGE IMPRC1VETyiENTS:
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 ofPublic Works are generally described on Exhibit"B"attached hereto.
Each of saidimprovements relate to the use,repair,maintenance or improvement of,or payment oftaxes,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 defers onstruction ofthe improvements because
their construction is necessary for the public health,welfare and safety and/or is necessary to the orderly development of the 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 ofsaid improvements maybe required at a specified time. Each Owner shall participate on a pro
rata basis in the cost of the improvements to be installed. If Owner is obligated to pay a pro rata share of cost of a facility provided by others,the notice shall
include the amount to be paid and the time when payments must be made.
5. .PERFORMANCE OF THE WORK. Owner shall perform the work and make the payments required by County asset forth herein oras modifiedby
the Board of Supervisors. Owner shall cause plans and specifications for the improvements to be prepared by competent persons legally qualifioft do the work
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 app VVIIL Owner agrees
to commence and complete the work within the time specified in the notice given by the Director ofPublic 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 fads to construct any ofthe improvements required under this agreemcnt,County may,
at its option,ado the work. Alien is hereby created on all property described in Exhibit"A"for the cost ofsuch work. IfCounty 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 attorney's foes,exists of
suit and all other expenses of fitigation incurred by County in connection therewith,and said attorney's fees,costs and other expenses shall also become 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 said liens shall be
divided proportionately among the various parcels. Permission to enter onto the property ofOwnex is granted to County or its contractor as maybe to
construct the improvements covered by this agreement.
6. MMT CQQPERATIVE PIAN. 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 a local improvement district,if this method is
feasible to secure the'installation and construction of the improvements.
7. REVIEW/OF REQUME TENTS. If Owner disagrees with the requirements set forth in any notice to commence installation ofimprovements,he
shall,within 30 days ofthe date the notice was mauled,request a review ofthe requirements by the Board of Supervisors of County. The decision of this Board
shall be binding upon both County and Owner.
8. ACCEPTANCE OFIIviPRO MENTS. County agrees to accept those improvements specified in Exhibit"B"which are amdcorpleted
in accordance with County standards and requirements and are installed within 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 responsrbdity for the
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. BQNDS. Prior to County approval of improvement plans,Owner may be required to execute and deliver to the County a faithful performance bond
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 ofthe work
required and payment of all persons furnishing labor and materials in the performance of the work.
10. INSURANCE. Owner shall maintain,or shall require any contractor engaged to perform the work to maintain,at all times dumigtheparfamanoeof
the work called for herein a separate policy of insurance in a form and amount acceptable to County.
11. MEIAN TY. Owner shall defend,indemnify and save hamiless the County,it's officers,agents and employees,from every expense,liability or
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 employedbyany 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 shall not be
deemed to require the Owner to indemnify the County against the liability for damage arisir 3 from the sole negligence or willful misconduct ofthe County orits
agents,servants,or independent contractors who are directly responsible to the .•u;yh.
12. INCORPORATION OF COST ALLOCATION AGREEMENT. On October 12, 2000, a
Cost Allocation Agreement was entered into by and between Pera 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
State of Qr OPTIONAL SECTION
County of ACA&",0 CAPACITY CLAIMED BY SIGNER
On `26--tOLP),before me, Jv IYAX. J: ff-I-O I Though statute does not regvdr�e the Notary to 9111 In
DATE N T �CITLE OF OFM R E.G,-JANE DOE,NOTARY PUBLIC' the data below,doing so may prove Invaluable to
personally appear persons relying on the docmne nt.
�'f�Ji�tlFy�lr9,J�l�Sid I LJ'O GNEW e'INDIVIDUAL
V personally known tome-OR-❑ proved tome on the basis of satisfactory evidence to ❑ CORPORATE OFFICER(S)
be the person(s)whose name(s)islwe .m.Jg
subscribed to the within instrument and
adcnowledgedtomethathe/she/theyeoa"Aed ❑ PARTNER(S) ❑ LIMITED
SANDY J.SCHNEIDER the same in hislerhhe it authorized ❑ GENERAL
c apacity(ic s),and that by hiAer/thar ❑ ATTORNEY-IN-FACT
Ccxr mt"Ton#12616W sighateue(s)on the instrument the person(s)or ❑ ATTORNEY-IN-FACT
TRUSTEE(S)
NOW Public-CoRo yft � the entity upon behalf of which the person(s) ❑ GUARDIAN/CONSERVATOR
Alafflwda County acted,awcute d the instrument. ❑ OTHER:
MYCLtJfnm APr2Z2(0d IPTNESS my and d o'Ieial seal,
SIGNER IS REPRESENTING:
(NAME OF PERSONS)OR EN NOM)
SIO NOTARY
OPTIONAL SECTION
THIS CERTIFICATE MUST BE ATTACHED Title or Type of Document
TO THE DOCUMENT AT RIGHT. Number of Yager
Though the data below is not required by law,it may prove valuable Date of Document
to persons raying on the document and could prevent fraudulent Signer(s)Other Than Named Above
re-sttadhme t ofthis form
INSTRUCTIONS 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.
I. FOR ALL SIGNATURES -The name and interest of the signer should be typed or printed BENEATH the signature. The
name must be Fi-&-n-e-d exactly as it is typed or printed.
II. SIGNATURES FOR INDIVIDUALS-The name must be signed exactly as it is printed or typed. The signer's interest in the
property must be stat
III. SIGNATURES FOR PARTNERSHIPS - Signing party must be either a general partner or be authorized in writing to have
t e
authority to sign for and binde partnership.
IV. SIGNATURES FOR CO_ RATIONS
Documents spiv be signed two Mcers,one from each of the following two groups.
GROUP I. (a}The Chair of the Board
(b The President
c}Any Vice-President
GROUP 2. {a The Secretary
{b An Assistant Secretarr��
(c The Chief Financial&Hcer
{ )The Assistant Treasurer
If signatures of officers from each of the above two groups do not appear on the instrument, a certified copy of a resolution of the
Board of Directors authorizing the person signing the Instrument to execute instruments of the type in question is required.A currently
valid power of attorney,notarized,will suffice.
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
.Directors."
JC3•
\ WUSHARDATA1GryData\EMSvc\Foneu\WORDFORMSAUPLRtPOSENOTARY.doc
Rev.May 11499
EMBIT 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, Book 14669, Page 927, Official.Records."
3
EXHIBIT B
RE: 2501 RZ
LP952099
OP953089
IMPROVEMENTS
Improvements required by Contra Costa County Community Development Department and the County Ordinance
Code as Condition of Approval 21(A),(B),and (C)for the above referenced Development Plan are located at
Treat Blvd,and Oak Road between parcels 148-250-071,and PARCELS 172-420-042,043,044,045,AND 046,
the latter five of which is the property of the Owner,and is described in Exhibit A. The improvement is a
pedestrian overcrossing 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 may be 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 BART
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 Plan,Plan 95-3089.
W:Personal\PHBAPT\Exh ibit9.3.01
EMEIT C
COST ALLOCATION AGREEMENT
Si
COST ALLOCATION AGREEMENT FOR PEDESTRIAN
OVER-CROSSING OF TREAT BOULEVARD
NEAR OAK ROAD
This Cost Allocation Agreement(the"Agreement") is being executed as of
2000, by and between Pera Urban West Corp., a Delaware corporation("Pera 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 324, 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 I 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 II, III and IV)
of the Urban West Business Park located on Lots 2, 3, 4 and 5 of the property described above,
immediately adjacent to Pera Urban Nest's property. Pera Urban West's property and LSI's
leasehold are collectively referred to as Area 15.
G:\DOCSt20445\003\Cost Allocation Agreement-final I
INITIAL
Oct '10 001 04: 00P ADOGn (41-5) 543-43401 P_
4. The proposed Treat Boulevard pedestrian over-crossing("the over-crossing")
is to be completed when requested by the County. LSI and Tera Urban West are each required,
pursuant,to their Conditions of Approval as imposed by the County,to make Area I5's
contribution to the completion of the over-crossing.
S. Pursuant to paragraph 2l C 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 working 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 coasts"). This amount is
subject to change since the over-crossing may not be built for a number of years
and the final cast 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 borne by the parties as follows:
?era Urban West: the easements
G.DOCS\20445\0031Cost Allocation Agreement-final 2 �
INITIAL
L
LSI: the estimated costs
The County,through the Redevelopment Agency,agrees to be responsible for funding the
incremental difference between a standard "off-the-shelf'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")in 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 existing handicapped 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\20445\003\Cost Allocation Agreement-final 3 i
INITIAL
8. The Redevelopment Agency agrees that the easement for the support post and the
permission by Pera Urban West for the County to modify the handicapped access ramp,the
stairway and the pedestrian plaza to accommodate the over-crossing fully satisfies Pera 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 LSI 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 one-half of the final approved estimate for a standard"off the-
shelf"design. The ficial 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:\DOCSi2o445X0031Cost Allocation Agreement-final 4
INITIAL-
1 2. 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 West's Default: IF TIME 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, STAIRWAY 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 COUNTY
B. LSI's_Default: IN THE EVENT OF: (A)LSI'S FAILURE TO TIMELY
G:\DOCS1204451003\Cast Allocation Agreement-final 5
INITIA
12. Breach:
A. By era 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 Nest 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 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, STAIRWAY AND/OR PEDESTRIAN PLAZA, THEN IN
ADDITION TO COMPELLING SAID COOPERATION,THE COUNTY MAY SEED..
DAMAGES EQUAL TO ONE-FOURTH(I/4)OF THE AREA 15 CONTRIBUTION TO THE
FINAL ESTIMATED COST OF TI IE STANDARD OF"Off-THE-SHELF" DESIGN.
INITIALS: PERA URBAN WEST
CONTRA COSTA COUNTY
B. LSI's Default: IN THE EVENT OF: (A)LSI'S FAILURE TO TIMELY
+G.\DOCS12044540030Cost Allocation Agreement-final 5
INITIAL
PERFORM ITS OBLIGATIONS HEREUNDER OR(B)THE TERMINATION OF THE
PROJECT BY LSI FOR WHATEVER REASON,THE COUNTY SMALL 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 West 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 Fera 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. Authori : 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 terms 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 t&en.
17. Agreement Runs with the Land: This Agreement runs with the land. A
G:\DQCS\20445\003\Cost Allocation Agreement-final 6
INITIA,
Memorandum of Agreement shall be recorded in the County's Official Records.
18. Notices: All written notices required to be given pursuant to the terms hereof shall
be 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: General Manager
Fax#: 925-468-0434
To LSI: Leisure Sports, Inc.
7077 Koll Center Parkway, Suite 1 10
Pleasanton, CA 94566
Attn: Patrick J. O'Brien
Fax#: 925-600-1144
To Contra Costa County Contra Costa County
Community Development Department
651 Pine Street,4th Floor,North Wing
Martinez,,CA 94553-0095
Attn: Deputy Director of Redevelopment
Fax#: 925-335-12615
To Contra Costa.County Contra Costa County
Redevelopment Agency Community Development Department
651 fine 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:\DOCS\20445\003\Cost Allocation Agreement-final 7
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: If any 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 costs incurred in that action or proceeding, 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 suras 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
interpretation of this agreement or any amendments or exhibits hereto.
22. Governing Law: This agreement shall be construed and interpreted in accordance
with and shall 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 may be
commenced in the courts of the State of California, and venue for the purpose of any action in
C_1CJOCS\2044510031Cost Allocation Agreement-final 8 /`~
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 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, Pera Urban`'Nest,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
7 _
By: ir/
Its: t/lC � �✓r
LEISURE SPORTS, INC.
A California Corporation
By:
Patrick J. O'Brien
Its:
GADOCSV0445\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 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 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. .4
Patric J.. Brien
1G:\D0CSl2044510431Cost 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 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,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:
Patrick J. O'Brien
Its:
G:tDOCS\20445\003\Cost Allocation Agreement-final 9
INITIA
CONTRA COSTA COUNTY
By:_
x ?de
edy
Its. DirectorDirector o
opment
CONTRA COSTA COUNTY
REDEVELOPMENT AGENCY
J Kennedy
ts: eputy Directo of
edevelopmen
G:\DOCS\2044510031Cost Allocation Agreement-final 10
YNITIA
EXBIBIT D
ASSIGNMENT AND ASSUM:P'TION OF GROUND LEASE
THIS 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 C-Assignee', with reference to the following:
RECITALS:
A. Jaynes Tong, as "Landlord", and Leisure Sports, Inc.,as"Tenant",executed a
Ground Lease on April 9, 1999 (the "Ground Lease"),a Memorandum of which was recorded
on November 17, 1999 as Document No. 1999-03012040-00,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 Tong
to James Tong andMei Fong Tong. An amendment to the Memorandum naming James Tong
and Mei Fong Tong as "Landlord"was recorded on May 26,2000 on Document No. 2000-
0108353-00, Official Records of Contra Costa County,California. On September 14,200)0,
James Tong and Mei Fong 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. Milson.and Shirley Nadine Wilson Revocable Trust dated
02/27/90. 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,loocsl20445=3V,ssignmc0t re WC Walnut 1 April 9,2001
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 Assignee 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 Assumption. As of the Effective Date,Assignor 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 Lavv. This Assignment shall be construed under and enforced in
accordance with the laws of the State of California.
3. Further Assurances. Assignor agrees to execute and deliver to Assignee, upon
demand, such further documents, instruments and conveyances,and shall tape 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_
III WITNESS WHEREOF, as of the date first set forth above;Assignor has executed.this
Assignment and Assignee has accepted and assumed all of Assignor's right, title and interest in
ry-VL ocsM44SM31Assignment=WC Walnut 2 Alxil 9,200t
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
Patrick J. ffBrien Leisure Sports,.Inc.
Its Chief Financial Officer Its Managing Member
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 date set forth therein.
Jamelt
g .. Mei Fong Tong
De ittC. Wilson d Shirley
Nadine Wilson, as Trustees of the
DeWitt C. Wilson and Shirley
Nadine Wilson Revocable Trust
Dated 02/27/90
GADocs\20"5M3%k,W nmcat rt we Walnut 3 April 9.2001
State of California RIGHT THUMBPRINT(Optional)
County of Alameda
On 5/24/41 before me,Jca stet, y, jr. , Notary Pubs
[DATE) (NAMF(nnE OF OFFICERi e.'JANE DOE.NOTARY PUBUC")
a
personally appeared **Patrick J. O'Brien**
tNAME(S)OF SIGNERISII
** * CAPACITY CLAIMED BY SiGNERIS)
OINDIVIDUAL(S)
OCOAPGRATE
LK personally krioWft to me -OR-T] proved to me' on the OFFICER(S)
basis of satisfactory Ittt
evidence to be the 0PARTNER(S) OUMITED
person0A whose name(ni OGENERAL
JOSEPH STElLY JFL is/am subscribed to the OATTORNEY IN FACT
COMMISSION 12MM within instrument and EITALISTEE(S)
e NOTARYPUSUC-CALIFO(iN(A acknowledged to.me that 0GUAR0(ANrCONSERVATOR
AL WE0A C VNTY
he executed the Cl()TFIER:
moi, k,y�
same in his/ha*4ir
authorized capacity(*4, Slot"is REPRESENTING:
and that by his/h #:# ('
Signature(g) on the (Name of Person(s)or Entity(iea)
instrument the person(@4,
or the entity upon behalf
of which the person{s}
l acted= executed the
f instrument. RIGHT THUMBPRINT(Optional) I
Witness my hand and official seal. w
4
(SEAL)
je o
i€ (SIGNATURE OF NO Y)
Jc�sEPH sTEIc,Y, J..
CAPACITY CLAIMED BY S)GNER(S)•
OIND)VtDUAL(S)
OCORPORATE
ATTENTION NOTARY
OFFICER(S)
The information requested below and in the column to the right is OPTIONAL. MnL%
Recording of this document is not required by law and is also optional.
It could, however, prevent fraudulent attachment of this certificate to any OPARTNER(S) OLIMITED
unauthorized document. OGENERAL
OATroRNEY IN FACT
THIS CERT'IF'ICATE Tide or Type of Document r}TRUSTEEtS)
MUST BE ATTACHED OGUARDIANICONSERVATOR
TO THE DOCUMENT Number of Pages Date of Document OOTHER:
DESCRIBED AT RIGHT:
Signar(s)Other Than Named Above
SIGNER IS REPRESENTING:
(Name of Peraonts)or Entitytiee)
WOLCOTT$FORM 67237 Ray.3-1+/[pelts class 0-2A3 01014 WOLCOTT$FORMS.INC.
ACL PURPOSE ACKNOWLEOGMENT FOR CAuFoRN1A MATH SIGNER CAPACItt1REPRESENTATIOXnWO FINGERPRINTS
7 67775 63237 8
State of California
RIGHT THUMBPRINT loptional)
County of Alameda ---
s
On 5/24/01 before me,Joeph Stell., -Jx..__Notary Publ
(DATE) INAI.MEITITLE OF OFFICER-i.e."JANE DOE,NOTARY PUBtIC`I
I.
personally appeared **Patrick J. O'Brien**
NAME(SI OF SIGNERISII
CAPACITY CLAIMED By SIGNERIS)
OINDIVIDUAL(S)
OCORPORATE
personally knowh"to me -OR- 0 to :me on the OFFICERS)
basis of satisfactory rr�Tlgs,..
evidence to be the OPARTNER(S) OL1MITED
person whose name(0 OGENERAL
is/ate subscribed to the OATTOPJIEY IN FACT
JOSEPH STELLY JR. within instrument and OTRUSTEEIS)
+� COMFA)SuU�FIT acknowledged tomethat OGUARDIAN,CONSERVATOR
f NOTARY PUBt)t CJiuFURNu he/s4 executed the OOTHER
ALAMEDA COUNTY
MYwroissimwil.,d)11t2. same in his/ r
authorized Capacity{ins.), SIGNER M REPRESENTING:
and that by his/
signature{) on the IName of Personas)or Entityties)
instrument the person(#I,
or the entity upon behalf
of which the person(s)
acted, executed the
instrument. RIGHT THUMBPRINT tOptional)
S
Witness my hand and.official seal.
s
as
ISEAL) `n f
(SIGNATURE OF No ARY
JOSEPH STEMY, JR.
CAPACITY CLAIMED BY SIGN€RIS)
OINDIVIDUAL(S)
OCORPORATE
ATTENTION NOTARY
OFFICER(S)
The information requested below and in the column to the right is OPTIONAL. rTMT��
Recording of this document is not required by law and is also optional.
It Could, however, prevent fraudulent attachment of this certificate to any OPARTNER(S) OLIM17ED
unauthorized document. OGENERAL
OATTORNEY IN FACT
THIS CERTIFICATE Title or Type of Document OTRUSTEEISI
MUST BE ATTACHED OGUARDIAN/CONSERVATOR
TO THE DOCUMENT Number of Pages�Date of Document OOTHER:
DESCRIBED AT RIGHT:
Signers)Other Than Named Above
SIGNER 13 REPRESENTING:
)Name of Personts)or Entitytios)
WOLCOTT$FORM 43237 Rev.3.94 bw;co claw 4-2M 4Dt994 W6LCOTTS FORMS.INC.
ALL PURPOSE ACKNOWLEDt.MENT FOIL CAUFORN/A YhIiTlf SitiFIER CAPACITYA2EPftESEHTATIONJ[VM'O FINGERPRINTS
11111
7 b777S 8323 8