191.160/536563
551\01\3557515.1
7/1/2023
191.160/545963
RECORDING REQUESTED BY
AND WHEN RECORDED, RETURN TO:
MP 965 Weeks Street Associates, L.P.
c/o MidPen Housing Corporation
303 Vintage Park Dr. Suite 250
Foster City, CA 94404
FOR RECORDER’S USE ONLY
APNs: 063-232-210-3, 063-232-220-2, and 063-232-230-1
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (this “Agreement”) is made as of _______________, 2023, by and between the City of East Palo Alto (“Grantor”), and MP 965 Weeks Street Associates, L.P., California limited partnership (“Grantee”), with reference to the following facts:
A. Grantor is the fee owner of certain real property located in the City of East Palo Alto, California, identified as San Mateo County Assessor’s Parcel Numbers 063-232-210-3, 063- 232-220-2, and 063-232-230-1, and more particularly described on Exhibit A attached hereto (the “Grantor Property”). Pursuant to the terms of that certain Disposition, Development and Loan Agreement, dated as of December 15, 2020, by and between Grantor and Grantee, Grantor intends to lease the Grantor Property to Grantee pursuant to a ground lease agreement (“Ground Lease”) and Grantee intends to develop the Grantor Property with approximately one hundred thirty-six (136) units of affordable housing (including one unrestricted manager’s unit) and other onsite improvements, including parking facilities, resident services space and outdoor community space (the “Grantee Project”).
B. Grantor is also the fee owner of certain real property located adjacent to the Grantor Property, in the City of East Palo Alto, California, identified as San Mateo County Assessor’s Parcel Number 063-233-010, and more particularly described on Exhibit B attached hereto (the “Grantor Adjacent Property and, together with the Grantor Property, the “Grantor Properties”), upon which Grantor Adjacent Property is a former rail spur track currently used as a bike and pedestrian trail.
C. In connection with the construction of the Grantee Project, Grantee intends to construct certain improvements on portions of the Grantor Adjacent Property for the purpose of Easement Agreement (Emergency Vehicular Access) Page 2
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facilitating emergency vehicular access to and from the Grantor Property over a portion of the Grantor Adjacent Property (the “Emergency Vehicular Access Improvements”).
D. Subject to the terms of this Agreement, Grantor has agreed to grant to Grantee certain easements over its property, as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for good and valuable consideration, the receipt and adequacy of which the parties hereby acknowledge, the parties hereby agree as follows:
1. Grantee Easements.
(a) Subject to terms and conditions of this Agreement, Grantor hereby establishes and grants to Grantee, for the benefit of Grantee, its tenants, subtenants, invitees, agents, employees, contractors, utility and service providers, successors and assigns (collectively, the “Grantee Parties”), and the Grantor Property, the following non-exclusive rights, privileges and appurtenant easements (the “Grantee Easements”):
(i) A non-exclusive right, privilege and appurtenant easement for emergency vehicular access (the “Emergency Vehicular Access Easement”) over that portion of the Grantor Adjacent Property described and depicted in Exhibit C attached hereto (the “Emergency Vehicular Access Easement Area”)
(ii) A temporary non-exclusive right, privilege and appurtenant easement for emergency vehicular access over such portions of the Grantor Adjacent Property as the Grantee Parties may reasonably need to access in order to construct the Emergency Vehicular Access Improvements and/or to construct the Grantee Project (the “Temporary Construction Easement”). The Temporary Construction Easement shall commence as of the date Grantor issues building permits authorizing construction of the Grantee Project and shall terminate on the date the City issues a final certificate of occupancy for the Grantee Project. (b) Limitations. In exercising their rights under the Grantee Easements, the Grantee Parties shall not unreasonably interfere with the use and enjoyment of the Grantor Adjacent Property by Grantor, its tenants, subtenants, invitees, agents, employees, contractors, utility and service providers, successors and assigns and the members of the public(collectively, the “Grantor Parties”).
2. Emergency Vehicular Access Improvements Work
(a) Grantee shall perform all Emergency Vehicular Access Improvements work at its sole cost and expense, in a good and workmanlike manner and in compliance with all applicable laws, and shall cooperate with Grantor to perform such work at such times as to not unreasonably interfere with the use and enjoyment of the Grantor Adjacent Property by the Grantor Parties. Upon the completion of the Emergency Vehicular Access Improvements, Easement Agreement (Emergency Vehicular Access) Page 3
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Grantee shall, at its sole cost and expense, repair any damage to the Grantor Property caused by such work.
(b) Grantee shall keep the Grantor Property free and clear of all liens and other encumbrances arising out of the Emergency Vehicular Access Improvements under this Agreement.
3. Maintenance and Repair Obligations. Grantee shall, at its sole cost and expense, keep and maintain all Emergency Vehicular Access Improvements in good condition and repair.
Additionally, Grantee shall, at its sole cost and expense, repair any damage to the Grantor Adjacent Property caused by the acts or omissions of the Grantee Parties. In the event that Grantee fails to complete any maintenance or repair work set forth in this Section 3 within twenty (20) business days after receipt of a written demand from Grantor, then Grantor may complete such work and Grantee shall reimburse Grantor, on demand, for all reasonable costs incurred by Grantor in connection therewith.
4. Character of Easements. This Agreement shall be recorded by the parties in the Official Records of San Mateo County (the “Official Records”). The Emergency Vehicular Access Easement shall be non-exclusive and perpetual in duration and the Temporary Construction Easement shall terminate as provided herein, unless otherwise terminated by an agreement executed by the Grantor and recorded in the Official Records. All provisions, agreements, rights, powers, covenants, conditions and obligations contained in this Agreement shall constitute covenants running with the land pursuant to Section 1468 of the California Civil Code, as may be amended from time to time, and shall be binding upon and inure to the benefit of the parties, their respective heirs, successors and assigns, and all other persons acquiring all or any portion of any party’s interest in the property described herein whether by sale, operation of law, foreclosure, deed in lieu of foreclosure, or in any manner whatsoever.
5. Grantee Indemnity and Insurance.
(a) To the maximum extent permitted by law, Grantee agrees to indemnify, defend and hold Grantor, its members, officers, employees, contractors, agents, successors and assigns (collectively, the “Grantor Indemnitees”) harmless from and against all losses, actions, demands, damages, claims, costs and expenses (including, but not limited to, expert witness fees and attorneys’ fees, and costs) and liabilities of whatever kind or nature (collectively, “Claims”) arising from or are in any way connected with the activities of the Grantee Parties under this Agreement or the entry on or use of the Grantor Property by the Grantee Parties, except and to the extent resulting from the gross negligence or willful misconduct of any of the Grantor Indemnitees.
(b) Grantor shall not be liable to the Grantee Parties for, and Grantee hereby waives and releases Grantor from, any and all Claims arising from or are in any way connected with the activities of the Grantee Parties under this Agreement or the entry on or use of the Grantor Property by the Grantee Parties, except and to the extent resulting from the gross negligence or willful misconduct of any of the Grantor Indemnitees.
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(c) Grantee shall at all times maintain a public liability and property damage insurance policy in the minimum amount of Two Million Dollars ($2,000,000) per occurrence and Three Million Dollars ($3,000,000) in the general aggregate, insuring against all liabilities of Grantee under this Agreement. Such insurance shall be obtained and maintained with an insurer with a current AM Best’s Rating of at least “A-VIII,” or an equivalent industry rating, shall name Grantor (and, upon the written request of Grantor, any lender or investor limited partner of Grantor) as an additional insured and certificate holder thereunder on a primary, noncontributory basis, and shall include a waiver of subrogation endorsement for the benefit of Grantor (and, if applicable, any lender or investor limited partner of Grantor). At Grantor’s request, Grantee shall provide Grantor with certificate(s) of insurance evidencing Grantee’s compliance with the foregoing insurance requirements.
(d) The provisions of this Section 5 shall survive the expiration or termination of this Agreement.
6. Amendments. This Agreement may be amended or otherwise modified only by a writing signed by Grantor and Grantee and recorded in the Official Records.
7. Default. The failure by a party to perform any covenant or obligation of such party hereunder and to cure such non-performance within thirty (30) days after written notice by the other party shall constitute a default hereunder, provided that if more than thirty (30) days are reasonably required for such cure, no event of default shall occur if the non-performing party commences such cure within such period and diligently prosecutes such cure to completion.
Upon a default the aggrieved party shall be entitled to all remedies, legal and equitable, allowed by law, except termination of the Grantee Easements herein granted. Any cure of a default tendered by a lender or investor limited partner of the defaulting party shall be accepted by the non-defaulting party on the same basis as if tendered by the defaulting party.
8. No Waivers. No failure on the part of a party to this Agreement to enforce any provision hereof with respect to any particular set of facts or circumstances shall be deemed a waiver of the right to enforce that provision or any other provision at a later time or in connection with the same or any other set of facts or circumstances. To be enforceable, any waiver of a party’s rights must be in writing signed by the party waiving such rights.
9. No Merger. The easements and covenants described and created by this Agreement shall not be extinguished by merger of any or all of the ownership interests in any one person or entity.
10. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the above easements. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force and effect.
11. No Third-Party Beneficiaries. The provisions of this Agreement are for the exclusive benefit of the parties and their successors and assigns. This Agreement shall not be Easement Agreement (Emergency Vehicular Access) Page 5
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deemed to confer any rights upon members of the public or any person except the parties and their successors and assigns.
12. Attorneys’ Fees. If either party brings an action or proceeding against the other by reason of a default, or otherwise arising out of this Agreement, the prevailing party in such action or proceeding shall be entitled to its costs and expenses of suit, including but not limited to experts’ fees and reasonable attorneys’ fees and costs, which shall be payable whether or not such action is prosecuted to judgment.
13. Notices. Every notice, approval, consent or other communication authorized or required by this instrument shall not be effective unless the same shall be in writing, and it shall be deemed to have been given upon actual receipt or refusal of delivery when deposited postage prepaid in the United States Mail registered or certified, return receipt requested, to the other party at the address below or such address as either party may designate by notice given from time to time in accordance with this paragraph:
To Grantor: City of East Palo Alto
2415 University Avenue
East Palo Alto, CA 94303
Attn: City Manager
To Grantee: MP 965 Weeks Street Associates, L.P.
c/o MidPen Housing Corporation
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attn: Assistant Secretary/Senior Project Manager
Email: [email protected]
Email: [email protected]
With a copy to: Wells Fargo Holdings Investments, LLC
420 Montgomery Street, 6th Floor
MAC# A0101-069
San Francisco, CA 94104
Attn: Director of Tax Credit Asset Management
With a copy to: Gubb & Barshay LLP
1835 Montgomery Street, Suite 1110
San Francisco, CA 94104
Attn: Evan Gross
Email: [email protected]
All notices shall be effective on receipt by the addressee and shall be deemed received at the earlier of actual receipt or three (3) business days following mailing.
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Following receipt by a party of a notice from the other party’s investor limited partner requesting to be copied on notices to such other party, the first party shall deliver copies of all notices to such other party to such investor limited party at the address designated by such investor limited partner.
14. Effect of Breach. No breach of any provision of this Agreement shall invalidate the lien of any mortgage made in good faith and for value, but all covenants, conditions and restrictions shall be binding on any owner whose title is derived through foreclosure sale, trustee’s sale, or otherwise.
15. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California.
16. Miscellaneous.
(a) If any provision hereof shall be held invalid or unenforceable, the remainder hereof shall not be affected thereby, and each provision hereof shall be valid and enforceable to the fullest extent permitted by law.
(b) Time is of the essence with respect to the performance of every provision of this Agreement in which time of performance is a factor. (c) This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one document.
17. Ground Lease. Notwithstanding anything to the contrary set forth in this Agreement, (a) this Agreement shall not be effective unless and until the Grantor and Grantee enter into the Ground Lease, regardless of the full execution or recording of this Agreement; and (b) so long as the Ground Lease is in effect, (i) Grantee shall be solely responsible and liable for, and shall be deemed to have assumed, all obligations under this Agreement.. [Signatures on Following Page]
Easement Agreement (Emergency Vehicular Access) Signature Page 191.160/536563
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IN WITNESS WHEREOF, the undersigned Grantor has executed this Agreement as of the date first set forth above.
GRANTOR:
CITY OF EAST PALO ALTO
By:
Name:
Title:
Approved as to form:
By:
Name:
Title:
Easement Agreement (Emergency Vehicular Access) Signature Page 191.160/536563
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IN WITNESS WHEREOF, the authorized representatives of the undersigned Grantee have executed this Agreement as of the date first set forth above.
GRANTEE:
MP 965 Weeks Street Associates, L.P., a California limited partnership
By: MP CANDO Weeks Street LLC, a California limited
liability company, its general partner
By: MidPen Housing Corporation, a California
nonprofit public benefit corporation, its
manager
By:
Name: Shwetha Subramanian
Title: Assistant Secretary
By: East Palo Alto Community Alliance and
Neighborhood Development Organization, a
California nonprofit public benefit
corporation, its member
By:
Name: Duane Bay
Title: Executive Director
[SIGNATURES MUST BE NOTARIZED]
Easement Agreement (Emergency Vehicular Access) Acknowledgment 191.160/536563
191.160/545963
State of California )
) ss.
County of ___________________________ )
On __________________________, before me, _____________________________, a Notary Public, personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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.
Easement Agreement (Emergency Vehicular Access) Acknowledgment 191.160/536563
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State of California )
) ss.
County of ___________________________ )
On __________________________, before me, _____________________________, a Notary Public, personally appeared , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
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.
Easement Agreement (Emergency Vehicular Access) Exhibit A 191.160/536563
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EXHIBIT A
LEGAL DESCRIPTION OF GRANTOR PROPERTY
The Grantor Property referred to in this Agreement is situated in the County of San Mateo, City of East Palo Alto, State of California and is described as follows [To be inserted]
Easement Agreement (Emergency Vehicular Access) Exhibit B 191.160/536563
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EXHIBIT B
LEGAL DESCRIPTION OF GRANTOR ADJACENT PROPERTY
The Grantor Adjacent Property referred to in this Agreement is situated in the County of San Mateo, City of East Palo Alto, State of California and is described as follows [To be inserted]
Easement Agreement (Emergency Vehicular Access) Exhibit C 191.160/536563
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EXHIBIT C
EMERGENCY VEHICULAR ACCESS EASEMENT AREA
[Attached]