Agenda — Menlo Park City Council, January 11, 2022 (part 3 of 3)

Exhibits
A. Purchase and Sale Agreement
Resolution No. 6690

Page 3 of 65 ends

1 1677\10\3201588.1

PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered into as of ___________________, 2022 (the "Effective Date"), by and between Menlo Station Development, LLC, a California limited liability company (the "Seller"), and the City of Menlo Park ("City"). This Agreement is made with reference to the following facts.

RECITALS
A. Seller is the owner of real property situated in County of San Mateo, State of California and being APN Portion of 071-333-200 (the "Site"). A map of the Site is shown as Exhibit A.

B. City desires to purchase, and Seller is willing to sell and convey to City for the price and under the terms and conditions specified herein, a fee simple interest in a portion of the Site (the "Fee Property") and a temporary construction easement and a temporary access easement over a portion of the Site (the "Easement Property"). The Fee Property and the Easement Property are referred to collectively in this Agreement as the "Property". A site plan of the Fee Property and Easement Property are show in Exhibit B. The legal description and plat for the Fee Property is shown in Exhibit B-1 and the legal description and plat for the Easement Property is shown in Exhibit B -2.

C. City and Seller acknowledge and agree that the Property being acquired by City is for public use and is necessary for the construction, operation and maintenance of the Middle Avenue Bicycle and Pedestrian Rail Crossing Project, a public project (the "Project").

D. Seller understands and agrees that City cannot enter into this Agreement until such time as the City Council has approved this Agreement.

E. City is a public entity with the power of eminent domain and, prior to the Effective Date, City commenced certain pre-condemnation activities, including obtaining an appraisal for the purpose of acquiring the Property. The parties acknowledge that the proposed purchase and sale of the Property is under threat of eminent domain.

NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Seller hereby agree as follows:

1. AGREEMENT TO PURCHASE AND SELL.

Subject to all the terms and conditions of this Agreement, Seller agrees to sell, transfer, and convey to City, and City agrees to acquire and purchase from Seller, the Property upon the terms and conditions set forth herein. For the avoidance of doubt, references in this Agreement to the “sale” of the Property, or the “transfer,” “conveyance” or similar words with respect to the Property shall mean the sale, transfer and conveyance of a fee interest in the Fee Property, in the EXHIBIT A Resolution No. 6690

Page 4 of 65 ends

2 1677\10\3201588.1
form attached as Exhibit C, and the grant of easements, in the forms attached as Exhibits D and E to this Agreement, in and to the Easement Property.

2. PURCHASE PRICE; DEPOSITS.

The purchase price for the Property (the "Purchase Price") shall be Three Million Eight Hundred Ninety-Eight Thousand Dollars ($3,894,500) payable at Closing. [Note: Purchase price to be adjusted based on final square footage of easements.] The "Closing" shall occur when the Grant Deed, Temporary Construction Easement and a Temporary Access Easement in the forms attached as Exhibits C, D, and E, respectively, are fully executed and recorded in the Official Records of San Mateo County (the "Official Records"). The Closing will occur through an escrow ("Escrow") established by the City with Lawyer's Title Company at 1460 El Camino Real, Suite 150, Menlo Park, California 94025 Attn: Susan Burnett ("Escrow Holder" or "Title Company").

Within ten days of this Agreement, the City will deposit Ten Thousand Dollars ($10,000) into Escrow (the "First Deposit"). The Deposits (as defined below) will be counted against the Purchase Price at Closing.

If City gives an Approval Notice (as defined in Section 7) to Seller and the Escrow Holder on or before the end of the Contingency Period pursuant to Section 7 below, (i) within five (5) business days after City’s delivery of the Approval Notice, City shall deliver to Escrow Holder an additional deposit of Ninety Thousand and No/100 Dollars ($90,000.00) (the “Second Deposit”), and (ii) the First Deposit and the Second Deposit (collectively, the “Deposits”) will become nonrefundable to City except as follows: the Deposits and any interest earned thereon while in Escrow shall be refunded to City if this Agreement terminates and Escrow fails to close as the result of (A) Seller’s default under this Agreement, (B) the failure of a City Condition to closing set forth in Section 12.1 (provided, however, that if the failure to Close arises solely from the conditions set forth in Section 12.1.2 or 12.1.3, Seller may retain $1,500 of the Deposits for each month starting from the date of this Agreement and continuing until such time as this Agreement is terminated (the "Termination Consideration")); (C) pursuant to Section 16 below or as otherwise expressly provided in this Agreement. If City does not timely give the Approval Notice to Seller and the Escrow Holder or if, after City delivers the Approval Notice to Seller and Escrow as provided above, the Closing does not occur for any of the reasons described in clauses (A), (B) or (C) above, then (1) this Agreement shall automatically terminate and the parties shall have no further obligations hereunder except as expressly provided otherwise herein, and (2) the First Deposit and Second Deposit (if previously deposited into Escrow), together with any interest earned thereon while in Escrow, shall be returned to City, and the Escrow shall be terminated. In such event, any escrow cancellation fees shall be paid by City.

3. INDEPENDENT CONSIDERATION.

As independent consideration for this Agreement, City shall pay to Seller within three (3) business days of the Effective Date One Hundred Dollars ($100), which amount shall be nonrefundable and shall not count against the Purchase Price.

Resolution No. 6690

Page 5 of 65 ends

3 1677\10\3201588.1

4. RELEASE OF CERTAIN CLAIMS.

Seller understands and agrees that City has the power to acquire the Property under eminent domain and that if City were to do so, City would be required to compensate Seller for the fair value of the Property, including compensation for the value of any improvements, severance damages, relocation expenses, and other amounts in accordance with applicable law. Seller further acknowledges and agrees that in lieu of determining such compensation through litigation, the amounts paid to the Seller and the covenants and other obligations of Seller made pursuant to this Agreement are in full settlement of all claims, costs, expenses or demands that the Seller has made or could have made against the City with respect to claims for compensation for the Property, improvements thereon or interests therein, severance damages, any amounts for relocation expenses, benefits and/or assistance pursuant to Government Code Sections 7260 et seq or other state and federal relocation laws, rules and regulations, loss of goodwill, eminent domain, condemnation, inverse condemnation, unreasonable pre-condemnation activities, and interest, costs, demands, damages, litigation expenses and reasonable attorneys’ fees (collectively, “Seller Condemnation and Relocation Claims”). The Seller shall not be entitled to receive and hereby waives all rights to receive any compensation, damages, or other amounts by reason of the Seller Condemnation and Relocation Claims relating to the Property, and releases the City from any such Seller Condemnation and Relocation Claims.

The release will survive Closing or earlier termination of this Agreement, set forth in this Section 4 but will not apply to any defense by Seller due to a post-termination condemnation or eminent domain action by the City with respect to the Property (collectively, "Post Termination Defenses").

The release set forth in this Section 4 includes Seller Condemnation and Relocation Claims relating to the Property of which Seller is presently unaware or which Seller does not presently suspect to exist which, if known by Seller, would materially affect Seller's release of the City. Seller specifically waives the provision of any statute or principle of law that provides otherwise. In this connection and to the extent permitted by law, Seller realizes and acknowledges that factual matters now unknown to Seller may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected relating to the Seller Condemnation and Relocation Claims, and Seller further agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that the Seller nevertheless hereby intends to release, discharge and acquit the City from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses relating to the Seller Condemnation and Relocation Claims. Accordingly, with respect to the Seller Condemnation and Relocation Claims, the Seller, on behalf of itself and anyone claiming by, through or under the Seller, hereby assumes the above-mentioned risks and hereby expressly waives and relinquishes any right the Seller and anyone claiming by, through or under the Seller, may have under Section 1542 of the California Civil Code, which reads as follows:
"A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her Resolution No. 6690

Page 6 of 65 ends

4 1677\10\3201588.1
would have materially affected his or her settlement with the debtor or released party."
Seller's Initials: __________
Notwithstanding the preceding provisions of this Section 4 or anything to the contrary set forth herein, the waivers and releases set forth in this Section 4 shall not apply to and Seller reserves any claims that it may have under this Agreement with respect to the following: (a) City’s fraud or criminal conduct; (b) third party claims for bodily injury or personal injury arising out of the acts or omissions of the events occurring prior to Closing in connection with this Agreement; (c) any other claims not related to Seller Condemnation and Relocation Claims; and (d) Post-Termination Defenses (collectively, the “Excluded Claims”).

The performance of this Agreement constitutes the entire consideration for the Property.

5. PROPERTY DOCUMENTS.

Within five (5) days following the Effective Date, Seller will deliver to City for review and copying to the extent in Seller's possession and reasonable control and to the extent reasonably pertaining to the Property including all leases, license agreements, final property condition reports, environmental reports, notices from governmental authorities (excluding any such notices provided by the City), surveys, maps, title insurance policies and contracts relating to the Property and any records relating to any lawsuits pending against the Seller, its agents or employees in connection with the ownership, operation, or management of the Property (collectively, the "Property Documents"). Notwithstanding the foregoing, Seller shall not be obligated to deliver to City (i) any document or item that is subject to attorney client or attorney-work product privilege, provided that Seller shall notify City if Seller is withholding any documents or items subject to any such privilege, which notice shall include a brief description of the subject matter of the item being withheld; (ii) any document or item that is proprietary to Seller (including any appraisals, estimations of value, purchase offers, letters of intent, or similar inquiries of interest concerning the acquisition or lease of the Property) or which Seller is contractually bound to keep confidential, provided that Seller shall notify City if Seller is withholding any document or item subject to confidentiality restrictions, which notice shall include a brief description of the subject matter of the item being withheld; and (iii) any documents or other materials that materially affect or pertain only to other portions of the Site and that do not materially affect or materially pertain to the Property. At Seller’s option, some or all of the Property Documents may be provided to City by Seller in electronic format or by posting such documents on a web room (such as Dropbox). City acknowledges and agrees that Seller shall have no obligation to prepare any reports, studies or documentation pertaining to the Property and that except as set forth in Section 10.5 below, Seller makes no representation or warranty with respect to the Property Documents. City agrees that such materials are not intended as a substitute for City’s own investigation of the Property. City shall rely on its own investigation of the Property and the Seller's representations and warranties in determining whether to proceed with the purchase of the Property.

6. INVESTIGATIONS.

Resolution No. 6690

Page 7 of 65 ends

5 1677\10\3201588.1
Subject to the terms and conditions in this Section 6, at all reasonable times from the Effective Date until the Closing or earlier termination of this Agreement and upon not less than two (2) business days’ prior email and telephone notice to Seller of any City Inspection, which notice shall be given to Seller via e-mail at the address set forth below and PBI (as defined in Section 11.7) via e-mail to Scott Clark at the following e-mail at [email protected], City and its agents, employees, representatives, and independent contractors (collectively, “City’s Representatives”) shall be entitled, at City's sole cost and expense, to (i) enter onto the Property during normal business hours to perform any inspections, investigations, studies and tests of the Property that City deems prudent (“City Inspections”), including, without limitation, physical, engineering, soils, geotechnical and environmental investigations and assessments; and (ii) interview occupants of the Property, if any. City shall conduct all City Inspections pursuant to this section so as not to unreasonably interfere with or disturb the operations of any lawful tenants or lawful occupants of the Property. Prior to entering the Property, City shall obtain, or cause the City’s Representatives that will enter the Property in connection with the investigations pursuant to this Section to obtain, general liability insurance (including umbrella or excess policies) in the amount of at least $1,000,000 per occurrence, and at least $1,000,000 in the aggregate, which insurance shall name Seller as an additional insured. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, City shall not conduct or allow, any City Inspection that includes physical or invasive testing, sampling, assessment, analysis or environmental or engineering investigations of the Property which include test holes, wells, or any other drilling, subsurface work, or physical sampling or explorations of the Property (“Physical Testing”) without first obtaining Seller’s written consent as to the timing and scope of the Physical Testing to be performed, which consent may be withheld by Seller in Seller's sole good faith discretion (and may be conditioned upon Seller’s review and approval of a work plan). Subject to the City's compliance with the other terms and conditions of this Section 6, Seller hereby consents to the Physical Testing described as Option A (and the referenced location included in the figure) in the AECOM report to the City dated December 10, 2019 and pertaining to the Property, which report is attached as Exhibit G. In addition, with respect to any such Physical Testing, (a) City will perform such City inspections in a manner that will not unreasonably interfere with the activities of Seller and PBI, its subcontractors, or their respective employees, agents, and representatives on the Property; and (b) City will cause the following to occur at its cost and expense and in accordance with applicable legal requirements:
(1) Soil that has been pre-characterized by in-situ soil testing and found to require disposal as a Class II or Class I waste shall be loaded directly into trucks for transport to the receiving facility once the appropriate off-site disposal location and permitting has been completed; (2) If direct disposal is not contemplated, the soil shall be placed in temporary on-site stockpiles on impermeable plastic sheeting (minimum 10-mil-thick) with a berm around the perimeter of the stockpile, separate from non-contaminated soil. Such stockpiled soil shall be well maintained at all times to prevent runon/runoff and fugitive dust emissions. The stockpiled soil shall be disposed of no later than 30 days after removal in accordance with applicable requirements after testing of samples has been completed.

As a condition precedent to any City Inspections, City shall provide Seller with proof of such insurance and an additional insured endorsement naming Seller, its mortgage lender, and The Cortana Corporation as additional insured prior to commencing any City Inspections of the Property. In addition, unless otherwise agreed to by Seller, City shall repair any material damage to the Property caused by any entry by City or City’s Representatives thereon and shall restore Resolution No. 6690

Page 8 of 65 ends

6 1677\10\3201588.1
the Property substantially to the condition in which it existed prior to such entry; provided, however, that City shall have no obligation to repair any damage caused by the acts or omissions of Seller or its agents, employees, contractors, representatives, guests, invitees, or tenants or to remediate, contain, abate or control any condition of the Property that existed prior to City's entry thereon unless such condition is exacerbated as the result of the City Inspections.

City will indemnify, defend, and hold Seller and Seller’s officers, directors, shareholders, beneficiaries, members, partners, affiliates, agents, employees and attorneys, and their respective successors and assigns (collectively, the “Seller Parties”) harmless for, from, and against any and all claims, damages, injuries, costs, liabilities, losses (including mechanics’ liens), and expenses (including, without limitation, reasonable attorneys’ fees) for property damage, bodily injury or death arising from any City Inspection, provided, however, that this indemnity shall not extend to, and City shall not be liable to any Seller Party for, (i) the mere discovery of any pre-existing Hazardous Materials (as defined in Section 10.8 below) arising from the conduct of any City’s Inspection, including Physical Testing and any other investigation, sampling or testing of the Property performed by or on behalf of City or City’s Representatives pursuant to this Section 6 (provided that City shall be liable for any exacerbation of any pre-existing Hazardous Materials caused by the active negligence or willful misconduct of the City or City’s Representatives) or (ii) the gross negligence or willful misconduct of Seller, or any agent, contractor, representative or employee of Seller, in connection with City's entry on, or City's inspections, investigations or tests conducted at, the Property. Within five (5) days after Seller’s written request, City will provide Seller with copies of any test or inspection reports prepared in connection with any City Inspection, at no cost to Seller. City’s obligations under this Section 6 shall survive Closing or the termination of this Agreement.

7. CONTINGENCY PERIOD.

City in City's sole and absolute discretion, shall approve or disapprove the Property, including the condition of the Property and the feasibility of City's intended current or future use of the Property during the period beginning on the Effective Date and ending at 5:00 p.m. (California time) on the date that is ninety (90) days after the Effective Date (such period, the "Contingency Period"). On or before expiration of the Contingency Period, City shall deliver written notice to Seller either approving the Property (the “Approval Notice”) or disapproving the Property (the “Disapproval Notice”). City's failure to deliver an Approval Notice or a Disapproval Notice shall be deemed disapproval. If City disapproves (or is deemed to have disapproved) the Property, the Deposits (to the extent previously paid by City) will be returned to the City, this Agreement shall automatically terminate and be of no further force or effect and neither party shall have any further rights or obligations hereunder except for those obligations of City or Seller that expressly survive such termination. If City approves the Property and provides the Approval Notice pursuant to this Section 7, this Agreement will continue, City shall deposit into Escrow the Second Deposit in accordance with Section 1, and the Deposits will become nonrefundable to the City (except as otherwise provided in this Agreement, including Section 2).

Resolution No. 6690

Page 9 of 65 ends

7 1677\10\3201588.1

8. CITY COVENANTS.

In connection with the design and construction of Improvements for the Project, Buyer shall determine whether any storm drainage, sewer, electrical, gas, telephone, or other utility lines, pipes or comparable improvements are located on the Fee Property and serve the balance of the Site ("Existing Site Improvements"). To the extent any Existing Site Improvements are located on the Fee Property, if such Existing Site Improvements must be modified, capped or relocated to accommodate the Project (the "Modified Site Improvements"), then at its sole cost and expense City will modify, cap and/or relocate such Existing Site Improvements to a location and/or a manner such that balance of the Site will receive benefits from the Modified Site Improvements that are comparable to the Existing Site Improvements. Seller agrees to cooperate with City in connection with any Modified Site Improvements, provided that any such cooperation will be at no cost or expense to Seller.

9. TITLE.

City may advise Seller in writing by not later than forty-five (45) days after the Effective Date what exceptions to title, if any, listed in the Preliminary Title Report from the Title Company dated September 10, 2021 Title Order No. FLNP-0061900603 (the "Preliminary Report") and identified on the survey by Towill Engineers and dated December 12, 2019 (the "Survey") are not acceptable to City (collectively, the "Title Objections"). The Preliminary Report, and the exceptions to title referred to therein, the Survey and the PBI License Agreement are collectively referred to as the “Title Documents.” Seller shall have five (5) Business Days after receipt of City's Title Objections to give City notice that (a) Seller will remove any Title Objections from title (or afford the Title Company necessary information or certifications to permit it to insure over such exceptions) or (b) Seller elects not to cause such exceptions to be removed. Seller's failure to provide notice to City within such five (5) Business Day period as to any Title Objection shall be deemed an election by Seller not to remove the Title Objection. If Seller so notifies or is deemed to have notified City that Seller shall not remove any or all of the Title Objections, City shall have until the later of close of the Contingency Period or ten (10) Business Days after receipt of Seller's notice (or deemed disapproval) to determine whether (i) to proceed with the purchase and take the Property subject to such exceptions or (ii) to terminate this Agreement. If, within such period, City elects to terminate the Agreement due to Seller's election not to remove a Title Objection, then the Deposits shall be refundable to City notwithstanding anything to the contrary stated in Section 7. "Permitted Exceptions" shall include and refer to any and all exceptions to title shown on the Preliminary Report, excepting solely Title Objections that have been timely identified by City and that Seller has notified City pursuant to this Section that Seller is willing to remove, and any other exceptions to title approved in writing by City. Notwithstanding anything to contrary herein, Permitted Exceptions shall not include and Seller shall be obligated to remove (collectively, the "Prohibited Exceptions"): all title exceptions created by Seller in violation of this Agreement; any mechanic's liens or materialman's liens created by or through Seller unless arising in connection with City's activities on the Property; and all mortgages, deeds of trust and encumbrances executed by, assumed by or caused by Seller that secure an obligation to pay money (other than installments of real estate taxes and assessments not delinquent as of the Closing Date.) The provisions of this paragraph apply in the event a title exception is identified after the City's objection period has expired, and such exception (each, a “New Exception”) was not Resolution No. 6690

Page 10 of 65 ends

8 1677\10\3201588.1
included on the Preliminary Report or Survey (other than the PBI License): (1) City may object in writing to such exception; (2) if Seller does not agree to remove such New Exception (and the Seller shall promptly respond to the City following receipt of City's objection), City may either (a) terminate this Agreement, in which event the Deposits will be refundable to the City notwithstanding anything to the contrary in Section 7 or (b) agree to waive such exception, in which event such an exception will be a Permitted Exception. The City will make good faith and diligent efforts to (1) object to any New Exception within fifteen (15) days from the Public Works Director or the City Attorney's identification of the New Exception (the "City New Exception Objection Deadline") and (2) if it elects to terminate this agreement due to a New Exception that the Seller will not remove, terminate this agreement within ten (10) days after the Seller's notice that it will not remove a New Exception (the "City New Exception Termination Deadline"). If the City misses the City New Exception Objection Deadline and/or the City New Exception Termination Deadline, but later terminates this Agreement pursuant to this paragraph, then the Seller may retain from the Deposit an amount equal to $50 for each day between the City New Exception Objection Deadline and the date the City provides notice of objection to the Seller or the City New Exception Termination Deadline and the date the City provides the notice of termination, as applicable (the "Per Diem Payment"). Such payment shall be paid to Seller by Escrow Holder's deduction of such amount from the Deposit and releasing such payment to Seller promptly after this Agreement is terminated. In no event will such payment be due if the New Exception is a Prohibited Exception. Notwithstanding the foregoing, if the City fails to object to any New Exception within thirty (30) days after the City New Exception Objection Deadline, or to terminate this Agreement by giving notice to Seller of such termination within thirty (30) days after the City New Exception Termination Deadline, then in either case Seller shall have the right to give written notice to City (“Seller’s First Notice”) stating that if City fails to make an objection or to terminate this Agreement within ten (10) business days from the date of Seller’s First Notice, then Seller shall have the right in its sole and absolute discretion to terminate this Agreement by giving written notice to City (“Seller’s Second Notice”) at any time after lapse of such ten (10) business day period unless City, within ten (10) business days after its receipt of Seller’s Second Notice, elects in writing to waive all objections to the applicable New Exception(s) and to waive City’s right to terminate this Agreement pursuant to this Section 9. In the event City does not waive its objections and/or right to terminate pursuant to this Section 9 and Seller elects to terminate this Agreement after giving Seller’s Second Notice, then the Deposits less any Per Diem Payment accruing prior to such termination shall be promptly returned to City and the parties shall have no further rights or obligations under this Agreement except to the extent such rights or obligations expressly survive termination.

During the Due Diligence Period, the City and Seller will prepare and use good faith efforts to agree upon a form of agreement to be executed at Closing (the "Easement Removal Document"), under which (a) City will release its rights and obligations with respect to the Site under that certain declaration of covenants, conditions and restrictions of Menlo Station Development, recorded in the Office of the County Recorder of San Mateo County, State of California on March 23, 1981 under File No. 26228-AS Records of San Mateo County, California (the "1981 Easement"); and (b) Seller will release its rights and obligations with respect to the Fee Property under the 1981 Easement.

Resolution No. 6690

Page 11 of 65 ends

9 1677\10\3201588.1

10. REPRESENTATIONS AND WARRANTIES
As an essential inducement to City entering into this Agreement, Seller represents and warrants to City as of the date hereof and as of the Closing Date:

10.1. No Conflicts. The execution and delivery of this Agreement, the consummation of the transactions herein contemplated, and compliance with the terms of this Agreement will not conflict with, or, with or without notice or the passage of time or both, result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, deed of trust, mortgage, loan agreement, or other document or instrument to which Seller is a party or by which Seller is bound, or any applicable regulation of any governmental agency, or any judgment, order or decree of any court having jurisdiction over Seller or any portion of the Property.

10.2. Due Organization; Consents. Seller is a California limited liability company. All requisite action has been taken by Seller in connection with entering into this Agreement and will be taken prior to the Closing in connection with the execution and delivery of the instruments referenced herein and the consummation of the transactions contemplated hereby. No consent of any partner, member, shareholder, beneficiary, creditor, investor, judicial or administrative body, governmental authority or other party is required in connection herewith that has not been obtained.

10.3. Seller's Authority; Validity of Agreements. Seller has full right, power, and authority to convey the Property to City as provided in this Agreement and to carry out its obligations hereunder. The individual(s) executing this Agreement and the instruments referenced herein on behalf of Seller have the legal power, right and actual authority to bind Seller to the terms hereof and thereof. This Agreement is and all other documents and instruments to be executed and delivered by Seller in connection with this Agreement shall be duly authorized, executed and delivered by Seller and shall be valid, binding, and enforceable obligations of Seller.

10.4. Bankruptcy. Seller has not (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by its creditors; (iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets; (iv) suffered the attachment or other judicial seizure of all or substantially all of its assets; (v) admitted in writing it inability to pay its debts as they come due; or (vi) made an offer of settlement, extension or composition to its creditors generally.

10.5. Property Documents. Except as otherwise provided in this Agreement, Seller has made available or will make available to City in compliance with this Agreement, copies of all Property Documents. Property Documents that are furnished to City by Seller are and will be true and to Seller's knowledge complete copies of such materials in Seller's possession.

10.6. Litigation. To Seller’s knowledge, there is no litigation or proceeding (including, but not limited to pending grievances or arbitration proceedings or foreclosure proceedings threatened) existing, pending or threatened, against or relating to the Seller or the Property. Except Resolution No. 6690

Page 12 of 65 ends

10 1677\10\3201588.1
as set forth in the Title Documents, Seller has not received notice of any special assessment from any governmental authority.

10.7. Leases and Use Rights. Excepting for the PBI License Agreement, as defined in Section 11.7 and as it may be amended in accordance with Section 11.7, and the Commercial Leases, as defined in Section 11.5, (a) Seller has not entered into or assumed any Lease relating to the Property that is currently in effect and (b) to Seller's actual knowledge no person or entity is currently occupying the Property or is a party to any "Lease." As used in this Agreement "Lease" will mean any lease, rental agreement, easement, license, or other right to occupy or use the Property, or portion thereof. The Commercial Leases allow (c) for parking uses on the Property at the reasonable discretion of the Seller and (d) for Seller to terminate use of the Property by any tenant or tenant's invitees upon notice and without the consent of or payment to any tenant or other third party and following such termination the Property will not be subject to the any Commercial Leases.

10.8. Hazardous Materials. To Seller’s knowledge, except as may be otherwise disclosed in the Property Documents delivered by Seller to the City pursuant to this Agreement, and/or the Natural Hazard Disclosure Report (as defined in Section 19.4 below), the Property does not contain any hazardous or toxic materials, including but not limited to, any chemicals or materials regulated as hazardous or toxic under any federal, state or local law (“Hazardous Materials”) in violation of applicable law. Seller agrees to provide City promptly in writing any information that Seller may acquire regarding the presence and location of any Hazardous Materials. Seller hereby discloses that the Property is located adjacent to a rail line and that in connection with railroad operations and activities, it is possible that Hazardous Materials were disposed of or released from trains operating on the rail line or in connection with the cleaning, repairing, maintaining and/or operating trains.

10.9. Service and Other Contracts. There are no maintenance, operating agreements, or other agreements affecting the Property, excepting those contracts and agreements relating to the operation and maintenance of the Site (the "Service Contracts"), the easements and other documents set forth in the Title Documents and the PBI License Agreement. All Service Contracts will be terminated by Seller with respect to the Property prior to the Closing. Except for the PBI License Agreement and easements or other agreements disclosed in or described in the Title Documents, Seller has not entered into any other contract, agreement, easement, license, understanding or commitment that will be binding on City or the Property after the Closing Date.

10.10. Non-Foreign Status. Seller is not a "foreign person" as defined in Internal Revenue Code Section 1445 or Sections 18805 and 26131 of the California Revenue and Taxation Code or any related regulations.

Whenever reference is made in this Agreement to the knowledge of Seller, such reference shall be deemed to mean the knowledge of David Wollenberg and not any implied, imputed or construction knowledge of such individual, Seller or any of Seller's agents, and, without any independent investigation or inquiry having been made or any implied duty to investigate or make any inquiries. Furthermore, it is understood and agreed that such individual is named in this Agreement solely for the purpose of establishing the scope of Seller’s knowledge, and such individuals shall have no personal liability in any manner whatsoever hereunder or otherwise Resolution No. 6690

Page 13 of 65 ends

11 1677\10\3201588.1
related to the transactions contemplated hereby. Seller represents and warrants that the foregoing person is the person affiliated with Seller most knowledgeable regarding the ownership and operation of the Property and leasing of the Site.

All of the representations and warranties of Seller set forth in this Section 10 (collectively, "Seller's Warranties") shall be deemed re-made by Seller as of the Closing Date with the same force and effect as if in fact made at that time, subject to any qualifications made by Seller and accepted by City pursuant to the provisions set forth below. All of Seller's Warranties, in the form deemed re-made by Seller and accepted by City as of the Closing Date, shall survive the Closing for a period of twelve (12) months (provided that the representations and warranties in Section 10.7 pertaining to the Commercials Leases, which shall survive the Closing for 48 months, and shall not be subject to the twelve (12) month time limitation.)

11. COVENANTS OF SELLER.

In addition to the covenants and agreements of Seller set forth elsewhere in this Agreement, Seller covenants and agrees that between the date hereof and the Closing Date:

11.1. Notice of Change in Circumstances. Seller shall promptly notify City upon Seller acquiring knowledge of any material change in the physical condition of any portion of the Property after the Effective Date or of any other event or circumstance that (a) materially, adversely affects the Property or (b) makes any Seller's representation or warranty untrue or misleading, (collectively, the "Seller Representation Notice") it being expressly understood that Seller's obligation to provide information to City under this Section shall, in no way relieve Seller of any liability for a breach by Seller of any of Seller's warranties or of any of Seller's covenants or agreements under this Agreement. Notwithstanding the forgoing, in no event shall Seller be liable to City for, or be deemed to be in default hereunder by reason of, any breach of representation or warranty for which Seller has provided a Seller Representation Notice prior to Closing, which breach results from any change not prohibited under the terms of this Agreement and beyond the reasonable control of Seller to prevent or cure. The City may terminate this Agreement upon notice to Seller if Seller delivers a Seller Representation Notice to City or if City has actual knowledge of a breach of any representation or warranty prior, in which event (c) the Deposits shall promptly be released to City and (d) neither party shall thereafter have any rights or obligations to the other hereunder. In addition, Seller shall not be liable with respect to any representation or warranty if, prior to Closing, the City Public Works Director or its senior project manager has actual knowledge of any breach of representation or warranty that contradicts any of Seller's representations or warranties and City nevertheless consummates the transaction contemplated by this Agreement.

11.2. Maintenance of Property. Seller shall not default with respect to the performance of any material obligation relating to the Property. Subject to the provisions of the PBI License Agreement, Seller shall maintain the Property prior to the Closing Date in substantially the same Resolution No. 6690

Page 14 of 65 ends

12 1677\10\3201588.1
manner as it has been previously maintained. Seller shall make no material alterations in the Property without City's prior written consent.

11.3. Exclusive Negotiations. For so long as this Agreement remains in effect, Seller shall (i) remove the Property from the market, and (ii) cease and refrain from any and all negotiations with any other prospective optionees or buyers of the Property.

11.4. Service Contracts; Other Contracts. Subject to Section 11.5, Seller shall not enter into, extend, renew or replace any existing Service Contracts or other contracts to the extent affecting the Property without City's prior written consent (which consent may be withheld in City's reasonable discretion), unless the same shall be cancelable, without penalty or premium (including but not limited to any cost or liability to the City) prior to Closing. Seller shall, at Seller's sole cost and expense, terminate all Service Contracts and agreements affecting the Property (excepting any Permitted Exception) on or before the Closing Date. Notwithstanding the foregoing, Seller shall have the right to modify, amend, cancel or terminate any Service Contracts that relate primarily to the maintenance, repair and operation of the Site (and not specifically to the Property) without City's consent so long as such Service Contracts are terminated without penalty or premium (including but not limited to any cost or liability to the City) with respect to the Property prior to Closing.

11.5. Leases. Notwithstanding anything to the contrary in Section 11.4, Seller shall not enter into any Leases or provide any other rights of occupancy or use with respect to the Property without City's prior written consent, which may be withheld by City in its sole and absolute discretion. The Seller is a party to the commercial leases listed in Exhibit H (the "Commercial Leases"). Seller will not modify the Commercial Leases in a manner that will breach or cause a conflict with the representation and warranty provided to City in Section 10.7. On or prior to the Closing, the Seller shall provide any required notice to each tenant of a Commercial Lease (each a "Commercial Tenant") that the Common Area will not include the Property. Seller shall, defend (with counsel acceptable to the City), and hold harmless the City, its councilmembers, officers, agents and employees (the "City Indemnitees") for all claims, losses, damages, costs and expenses (including attorneys' fees, charges and disbursements) for all actual damages sustained and incurred by the City and arising from or relating to Seller's breach of this Section 11.5 or 10.7 or in connection with any claims from a Commercial Tenant for compensation for the Property (or a portion thereof) and/or relocation expenses, benefits and/or assistance relating to the sale of the Property, including but not limited to, any compensation or benefits that the City is required to pay to the person or entity other than Seller under the Eminent Domain Law (Civil Procedure Code Sections 1230.010 et seq.) or the Relocation Law (Government Code Sections 7260 et seq.) in connection with the City's acquisition of that person or entity's interest in the Property and relocation from the Property. The provisions of this Section will survive Closing or earlier termination of this Agreement for 48 months.

11.6. Cooperation With City's Entitlement Activities and Transition. Seller desires to achieve the Parking Reduction prior to Closing and is conditioning its sale of the Property to the City on receipt of the Parking Reduction. The Parking Reduction approval process is estimated to take six to eight months from commencement. The City and Seller will, at no cost or expense to Seller, cooperate in applying to amend and restate the planned development permit to reduce the parking requirements for the remainder of Seller's real property located at 700-800 El Camino Real Resolution No. 6690

Page 15 of 65 ends

13 1677\10\3201588.1
APN 071-333-200 to permit Seller and its tenants and occupants to continue to use the remainder of the Site, without material adverse effect on Seller, notwithstanding the reduction in the available parking at the Site due to the sale of the Fee Property contemplated under this Agreement (the "Parking Reduction"). Nothing in this Agreement will obligate the City to approve or obtain the Parking Reduction, which shall be approved or disapproved by the City in its capacity as a regulatory entity. In the event the City disapproves the Parking Reduction prior to the Closing, this Agreement shall automatically terminate and be of no further force or effect and neither party shall have any further rights or obligations except for those obligations that expressly survive this Agreement.

11.7. PBI License Agreement. The Seller and Palisade Builders, Inc. ("PBI") are parties to a License Agreement dated June 17, 2019 and License Agreement No. 2 dated as of January 1, 2021 (collectively, the "PBI License Agreement"). The PBI License Agreement is a Property Document, and a copy of the PBI License Agreement was delivered to the City by Seller prior to the date of this Agreement. If requested by City at or prior to Closing, the Seller will execute and use commercially reasonable efforts to cause PBI to execute a City-standard form of license agreement or reasonable amendments to the existing PBI License Agreement to allow for such agreement to meet standard City requirements (the "Amended and Restated PBI License Agreement"), which shall include an assignment to the City. Any Amended and Restated PBI License Agreement will be reasonably acceptable to City. If Seller cannot secure PBI's execution of the Amended and Restated PBI License Agreement, Seller will provide PBI with notice of termination of the PBI License Agreement concurrently with the Closing.

12. CONDITIONS PRECEDENT TO CLOSING.

12.1. City's Conditions. The obligation of City to render performance under this Agreement is subject to satisfaction of the following conditions precedent to Closing (and conditions concurrent, with respect to deliveries to be made by the parties at Closing or at such earlier times as may be set forth below) ("City's Conditions"), which conditions may be waived, or the time for satisfaction thereof extended, by City only in a writing executed by City; provided, however, that any such waiver shall not affect City's ability to pursue any remedy City may have with respect to any breach hereunder by Seller:

12.1.1. Due Diligence. City shall have approved the Property in accordance with Sections 7 and 9 on or before the dates set forth in Sections 7 and 9, as applicable.

12.1.2. Construction Approvals and Agreements. City (a) shall have received all governmental approvals necessary to develop the Project, as determined by the City and all periods for the filing of an application for a referendum or other challenge regarding any such approval, have expired without the filing of an appeal or application, or if an appeal or application is filed, that the appeal or application is resolved on terms satisfactory to the City (b) shall have entered into one or more agreements with Caltrain, which will allow the construction of the Project on the Property and on and through the adjacent property owned by Caltrain (or subject to a Caltrain right of way or use) in a manner and cost acceptable to the City, as determined by the City in its sole and absolute discretion (the "Construction Agreements"). The Construction Resolution No. 6690

Page 16 of 65 ends

14 1677\10\3201588.1
Agreements are subject to City Council approval, which approval or disapproval shall be within the sole and absolute discretion of the City Council.

12.1.3. Parking Reduction. The City shall have obtained the Parking Reduction pursuant to Section 11.6 above and all administrative and judicial appeal periods for such approval, and all periods for the filing of an application for a referendum or other challenge regarding any such approval, have expired without the filing of an appeal or application, or if an appeal or application is filed, that the appeal or application is resolved on terms satisfactory to the City and Seller (collectively, the “Final Approval”).

12.1.4. Title. Title Company shall be prepared and irrevocably committed to issue a CLTA standard coverage policy (or, if City obtains an ALTA survey acceptable to the Title Company, an ALTA extended coverage owner's policy of title insurance (2006 form)) in favor of City in an amount equal to the Purchase Price showing indefeasible fee simple title to the Fee Property vested in City and easement rights in the Easement Property, subject only to the Permitted Exceptions (collectively, the "Owner's Title Policy").

12.1.5. Seller's Warranties; No Default. All of Seller's representations and warranties set forth in this Agreement shall be true and correct in all material respects as of the Closing Date and Seller shall not be in default under this Agreement.

12.1.6. Seller's Deliveries. Seller shall have delivered all items to be delivered by Seller pursuant to Section 14.1 on or prior to the Closing Date.

12.1.7. Bankruptcy. No action or proceeding shall have been commenced by or against Seller under the federal bankruptcy code or any state law for the relief of debtors or for the enforcement of the rights of creditors and no attachment, execution, lien or levy shall have attached to or been issued with respect to any portion of the Property.

12.2. Failure of City's Conditions. If any of City's Conditions have not been fulfilled within the applicable time periods, City may either waive such condition in writing and proceed to the Closing pursuant to this Agreement or terminate this Agreement, in which event (i) the Deposits (less any Termination Consideration owed) shall promptly be released to City and (ii) neither party shall thereafter have any rights or obligations to the other hereunder.

Notwithstanding the foregoing, if any of City's Condition is not satisfied due to a default on the part of Seller, then City shall have the rights and remedies set forth in Section 17.2. In addition, notwithstanding anything in this Agreement to the contrary, if the City terminates this Agreement pursuant to Section 12.2 or Section 12.3, the Termination Consideration shall be deducted from the Deposits prior to the return of the Deposits to City.

12.3. Seller's Conditions. The obligation of Seller to render performance under this Agreement is subject to the satisfaction of the following conditions precedent to Closing (and conditions concurrent with respect to deliveries to be made by the parties at Closing) ("Seller's Resolution No. 6690

Page 17 of 65 ends

15 1677\10\3201588.1
Conditions"), which conditions may be waived, or the time for satisfaction thereof extended, by Seller only in a writing executed by Seller:

12.3.1. Subdivision Map Compliance. At its sole cost and expense, City shall issue concurrently with Closing a certificate of compliance reasonably acceptable to the Title Company and Seller evidencing that the Property and remainder of the Site constitute legal parcels in compliance with the California Subdivision Map Act and the subdivision ordinance and other regulations of the City.

12.3.2. Parking Reduction. At its sole cost and expense, The City shall have obtained the Parking Reduction pursuant to Section 11.6 and the Final Approval (as defined in Section 12.1.3) shall have occurred.

12.3.3. City's Due Performance. City shall have delivered all items and funds to be delivered by City pursuant to Section 14.2, on or prior to the Closing and shall not be in default of its representations, warranties, covenants or other obligations under this Agreement.

12.4. Failure of Seller's Conditions. If any of Seller's Conditions have not been fulfilled within the applicable time periods, Seller may terminate this Agreement by delivery of written notice thereof to City. Upon such termination, (i) the Deposits shall be released to Seller except as provided in Sections 12.2, 16 or 17.2, and (ii) neither party shall thereafter have any rights or obligations to the other hereunder. Notwithstanding the foregoing, if any Seller's Condition is not satisfied due to a default on the part of City, then Seller shall have the rights and remedies set forth in Section 17.1.

13. CLOSING.

13.1. Closing Date. Subject to the provisions of this Agreement, the Closing shall take place on the date which is thirty (30) days following the later of (a) the Final Approval of the Parking Reduction and the satisfaction of Section 12.1.2 or (b) on such other date as the parties hereto may agree. In no event will the Closing be later than twenty-four (24) months from the date of this Agreement. The date on which the Closing occurs or is scheduled to occur pursuant to this Section 13.1 is referred to as the "Closing Date."

13.2. Condition of Title at Closing. Upon the Closing, Seller shall sell, transfer and convey to City indefeasible fee simple title to the Fee Property pursuant to the Grant Deed and an easement pursuant to the Temporary Access and Construction Easement, subject only to the Permitted Exceptions.

13.3. Prorations; Closing Costs. Any license fees or other amounts payable under the Amended and Restated PBI License Agreement shall be prorated as of Closing. All property taxes and assessments owing on the Property shall be prorated as of the Closing. Each party shall pay its own costs and expenses arising in connection with the Closing (including, without limitation, Resolution No. 6690

Page 18 of 65 ends

16 1677\10\3201588.1
its own attorneys' and advisors' fees), except the City shall pay all escrow and recording fees and all title insurance premiums for the Owner's Title Policy.

14. CLOSING DELIVERIES.

14.1. Deliveries by Seller to Escrow. In time sufficient to permit the Closing on the scheduled Closing Date (in no event later than 1 Business Day in advance), Seller, at its sole cost and expense, shall deliver or cause to be delivered into Escrow the following documents and instruments, each effective as of the Closing Date and executed by Seller, in addition to the other items and payments required by this Agreement to be delivered by Seller:

14.1.1. Grant Deed. The original executed and acknowledged Grant Deed conveying the Fee Property to City;

14.1.2. Temporary Construction Easement and Temporary Access Easement. Original executed and acknowledged Temporary Construction Easement and Temporary Access Easement conveying the easements and rights described therein to the City;

14.1.3. Amended and Restated PBI License Agreement. An original Amended and Restated PBI License Agreement executed by Seller and PBI;

14.1.4. Other. Such other documents and instruments, signed and properly acknowledged by Seller, if appropriate, as may be reasonably required Title Company or otherwise in order to effectuate the provisions of this Agreement and the Closing of the transactions contemplated herein, including, without limitation, reasonable or customary resolutions, proof of authority, title affidavits (in a form reasonably acceptable to Seller) and required by Title Company to issue the Owner's Title Policy.

14.2. Deliveries by City. In time sufficient to permit the Closing on the scheduled Closing date (in no event later than 1 Business Day in advance), City, at its sole cost and expense, shall deliver or cause to be delivered into Escrow the following:

14.2.1. Temporary Construction Easement and Temporary Access Easement. Original executed and acknowledged Temporary Construction Easement and Temporary Access Easement conveying the easements and rights described therein to the City;

14.2.2. Amended and Restated PBI License Agreement. An original executed Amended and Restated PBI License Agreement executed by the City.

14.2.3. Balance, Prorations & Closing Costs. The balance of the Purchase Price and City's share of prorations and Closing Costs;

14.2.4. Other. Such other documents and instruments signed and properly acknowledged by City, if appropriate, as may reasonably be required by Escrow agent or otherwise in order to effectuate the provisions of this Agreement and the closing of the transactions contemplated herein.

Resolution No. 6690

Page 19 of 65 ends

17 1677\10\3201588.1

14.3. Closing Procedure. When the Title Company has timely received all documents and funds identified in Sections 14.1 and 14.2, and has received written notification from City and Seller that all conditions to Closing have been satisfied or waived; and the Title Company is irrevocably committed to issue the Owner's Title Policy, the Title Company shall

14.3.1. Record the Grant Deed, Temporary Construction Easement and Temporary Access Easement in the Official Records;

14.3.2. Issue the Owner's Title Policy to City;

14.3.3. Deliver to City (i) a conformed copy showing all recording information of the Grant Deed, Temporary Construction Easement and Temporary Access Easement and (ii) City's closing statement; and

14.3.4. Deliver to Seller (i) the Purchase Price (as adjusted for prorations and Seller's share of closing costs), and (ii) Seller's closing statement.

15. PRORATIONS.

The following shall be prorated between City and Seller as of 12:01 a.m. on the Closing date: real property taxes and assessments, management, service, operating and maintenance expenses relating to contracts to be assigned to City; water, gas, electricity, sewer and other utility charges, annual permits and/or inspection fees and all other items of income and expense relating to the Property.

16. RISK OF LOSS.

16.1. Condemnation. In the event that prior to the Closing Date, the Property, or any part thereof, is subject to a taking by a public authority (other than the City), then City shall have the right, exercisable by giving notice to Seller within 30 days after receiving written notice of such taking either (a) to terminate this Agreement, in which case neither party shall have any further rights or obligations hereunder and the Deposits shall be released to the City, or (b) to accept the Property in its then condition and proceed to close this transaction, and to receive an assignment of all of Seller's rights to any condemnation awards payable by reason of such taking. If City elects to proceed under clause (b) above, Seller shall not compromise, settle or adjust any claims to such awards without City's prior written consent, which consent shall not unreasonably be withheld.

Seller agrees to give City prompt notice of any taking of the Property promptly after Seller receives notice of the same. Notwithstanding any provision of this Section 16.2 to the contrary, if any other part of the Site becomes subject to a taking by any public authority, Seller shall have the right to terminate this Agreement by written notice to City, in which event the Deposits shall be returned to City. For as long as this Agreement remains in effect, and provided Seller is not in default hereunder, the City agrees that it shall not acquire the Property under power of eminent domain.

16.2. Casualty. City acknowledges that the Property is not currently improved with any buildings or other structures and that the Purchase Price is based on the land value of the Property.

16.2.1. The City may terminate this Agreement in the event of any casualty affecting the Property, where the cost to repair or restore the Property to its Resolution No. 6690

Page 20 of 65 ends

18 1677\10\3201588.1
previous condition exceeds $380,000. Upon such termination, the Deposit shall be released to City and neither party shall have any further rights or obligations hereunder, other than pursuant to any provision hereof that expressly survives the termination of this Agreement.

16.2.2. If the cost to repair or restore the Property following a casualty does not exceed $380,000 or if the City does not terminate this Agreement as set forth in

16.2.1, this Agreement shall remain in full force and effect and City shall bear the risk of loss if the Property is damaged as the result of fire, earthquake, flood, sinkhole or other casualty or act of God, and there shall be no diminution in the Purchase Price as the result of any such casualty or act of God.

17. DEFAULT.

17.1. DEFAULT BY CITY.

IN THE EVENT THAT THE ESCROW AND THIS TRANSACTION FAIL

TO CLOSE AS A RESULT OF THE DEFAULT OF CITY IN THE PERFORMANCE OF

ITS OBLIGATION TO PURCHASE THE PROPERTY UNDER THIS AGREEMENT,

CITY AND SELLER AGREE THAT SELLER'S ACTUAL DAMAGES WOULD BE

IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX AND THAT THE

AMOUNT OF THE DEPOSITS REPRESENTS THE PARTIES' REASONABLE ESTIMATE OF SUCH DAMAGES. THE PARTIES THEREFORE AGREE THAT IN

THE EVENT THAT ESCROW AND THIS TRANSACTION FAIL TO CLOSE SOLELY

AS A RESULT OF THE DEFAULT OF CITY IN THE PERFORMANCE OF ITS

OBLIGATION TO PURCHASE THE PROPERTY HEREUNDER AND SELLER IS READY, WILLING AND ABLE TO PERFORM ITS OBLIGATIONS HEREUNDER.,

SELLER, AS SELLER'S SOLE AND EXCLUSIVE REMEDY FOR SUCH DEFAULT, IS

ENTITLED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSITS THEN HELD BY THE TITLE COMPANY. THE PAYMENT OF SUCH AMOUNT AS

LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369,

BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677.

SELLER HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. NOTWITHSTANDING ANYTHING IN THIS SECTION 17.1 TO THE CONTRARY, THIS SECTION 17.1 SHALL NOT WAIVE, LIMIT OR AFFECT (1) CITY’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, (2) SELLER’S

RIGHT TO RECOVER REASONABLE ATTORNEYS' FEES, COSTS INCURRED BY

SELLER TO REPAIR ANY DAMAGE TO THE PROPERTY RESULTING FROM CITY’S INSPECTIONS, (3) SELLER’S RIGHTS IF IT IS THE PREVAILING PARTY IN ANY SUIT OR ACTION PURSUANT TO SECTION 20.16 (ATTORNEY'S FEES), AND (4) ANY COSTS INCURRED BY SELLER IN ENFORCING ITS RIGHTS TO RECEIVE THE DEPOSITS AS LIQUIDATED DAMAGES. SELLER AND CITY

ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE
Resolution No. 6690

Page 21 of 65 ends

19 1677\10\3201588.1
PROVISIONS OF THIS SECTION 17.1, AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS.

Seller's Initials City's Initials

17.2. DEFAULT BY SELLER
`In the event that Seller breaches its obligation to sell and transfer the Property to City pursuant to this Agreement, and if such breach is not cured within five (5) business days after Seller’s receipt of written notice from City specifying such breach, then City may either (i) terminate this Agreement by delivery of notice of termination to Seller, whereupon City shall have the right to the return of all Deposits previously deposited by City into Escrow and to recover from Seller its actual out-of-pocket costs for legal and inspection fees incurred by City and all other out-of-pocket expenses incurred by City in connection with this transaction, including, without limitation, attorneys’ fees, application fees, architect fees, environmental and engineering consultants’ fees not to exceed, in the aggregate, One Hundred Thousand Dollars, and neither party shall have any further rights or obligations hereunder except for those provisions specified to survive or (ii) assert an action for specific performance of Seller’s obligations to sell and transfer the Property to City pursuant to this Agreement. Except for those claims specified to survive, claims of breach asserted against Seller must be expressly asserted in a lawsuit filed and service on Seller within the twelve (12) month period immediately following the Closing Date, and Seller shall have no liability whatsoever for any such alleged breach if such claim is not expressly asserted in a lawsuit filed and service on Seller within such twelve (12) month period.

17.3 Waiver of Certain Damages. Without limiting the other provisions of this Article 17, neither City nor Seller shall be liable for consequential or punitive damages (including any damages for lost profits, lost opportunity, or lost revenue). City waives its right to record a lis pendens or similar notice against all or any portion of the Property except in connection with a specific performance action brought in accordance with the terms of Section 17.2 or following termination of this Agreement. In no event does or will the City waive any of its rights to proceed in eminent domain if this Agreement is terminated as the result of Seller's breach of this Agreement.

18. BROKERS.

18.1. Seller. Seller hereby represents, warrants, and covenants to City that Seller has not dealt with any third party in a manner that would obligate City to pay any brokerage commission, finder's fee or other compensation due or payable with respect to the transaction contemplated hereby. Seller hereby indemnifies and agrees to protect, defend and hold City harmless from and against any and all claims, losses, damages, costs and expenses (including attorneys' fees, charges and disbursements) incurred by City by reason of any breach or inaccuracy of the representation, warranty and agreement of Seller contained in this Section. The provisions of this Section shall survive the Closing or earlier termination of this Agreement.

18.2. City. City hereby represents, warrants, and covenants to Seller that City has not dealt with any third party in a manner that would obligate Seller to pay any brokerage commission, Resolution No. 6690

Page 22 of 65 ends

20 1677\10\3201588.1
finder's fee or other compensation due or payable with respect to the transaction contemplated hereby. City hereby indemnifies and agrees to protect, defend and hold Seller harmless from and against any and all claims, losses, damages, costs and expenses (including attorneys' fees, charges and disbursements) incurred by Seller by reason of any breach or inaccuracy of the representation, warranty and agreement of City contained in this Section. The provisions of this Section shall survive the Closing or earlier termination of this Agreement.

19. DISCLOSURES; AS-IS SALE; RELEASE OF CLAIMS.

19.1. Health and Safety Code Notice. Section 25359.7 of the California Health and Safety Code requires owners of non-residential real property who know, or have reasonable cause to believe, that any release of hazardous substance has come to be located on or beneath the real property to provide written notice of such to a buyer of the real property. City and Seller acknowledge that Seller has advised City that the sole inquiry and investigation Seller has conducted in connection with the environmental condition of the Property is to obtain and/or review those certain environmental assessments and studies of the Property, if any, delivered to City pursuant to this Agreement (collectively, “Seller's Environmental Reports"). City (a) acknowledges City's receipt of the foregoing notice given pursuant to Section 25359.7 of the California Health and Safety Code; (b) will be, prior to the expiration of the Contingency Period, fully aware of the matters described in Seller's Environmental Reports; and (c) after receiving advice of City's legal counsel, waives, to the extent permitted by law, any and all rights City may have to assert that Seller has not complied with the requirements of Section 25359.7 of the California Health and Safety Code. City further acknowledges that City retained AECOM Technical Services (“AECOM”) to obtain a Phase I Environmental Site Assessment for the Property and has received and reviewed the Final Phase I Environmental Site Assessment prepared by AECOM dated December 10, 2019.

19.2. As-Is Sale. Except as otherwise provided in this Agreement, Seller hereby specifically disclaims any warranty, guaranty, or representation, oral or written, past, present, or future, of, as to, or concerning (a) the nature and condition of the Property, including, but not by way of limitation, the Improvements, the water, soil, geology, environmental conditions (including the presence or absence of any environmental contamination, or toxic pollution as a result of the presence, use, discharge, or release of Hazardous Materials on, about, or in the Property), and the suitability thereof for any and all activities and uses which City may elect to conduct thereon; (b) the nature and extent of any right-of-way, lease, possessory interest, lien, encumbrance, license, reservation, condition, or otherwise; (c) the compliance of the Property or its operation with any laws, codes, ordinances, policies, statutes, ordinances or regulations of any government or other body; (d) the quality, nature, adequacy, and physical condition of soils, geology, and any groundwater, including the presence of fill or the adequacy of soils compaction or the possibility or extent of any subsidence; (e) the size, square footage, acreage or boundaries of the Property; (e) the existence, nature or adequacy of ingress and egress to the Property; (f) the existence, nature, and adequacy of parking and of utilities serving the Property, including without limitation water, sewer, electric, gas, phone and cable service; (f) the nature, adequacy and quality of drainage on the Property, including the occurrence of any flooding, and the presence or adequacy of any sloughs or levees; (g) the present or future zoning or other legal status of the Property or any other private restrictions on use of the Property; (h) the development potential of the Property, and the Property’s use, habitability, merchantability or fitness, or the suitability, value or adequacy of the Resolution No. 6690

Page 23 of 65 ends

21 1677\10\3201588.1
Property for any purpose; (i) the presence of Hazardous Materials, on, under or about the Property, or adjoining or neighboring property; (j) the manner, quality or adequacy of existing construction, site or grading work on the Property or any construction materials; (k) the condition of title to the Property and the terms and conditions of the Leases; (l) the economics of operation of the Property, including but not limited to the projected income or expenses for any of the Property; and (m) any aspect, whether latent or patent, of any of the Property (collectively, all of the foregoing shall be hereinafter returned referred to as the “Property Condition Matters”). City represents that City is a knowledgeable purchaser of real estate and that City is relying solely on the Seller's representations and warranties as set forth in this Agreement and City’s own expertise and the expertise of City’s consultants and advisors and is making and relying upon its own inspections of all aspects of the Property. The sale of the Property as provided for herein is made on an “AS-IS AND WITH ALL FAULTS” basis, and City expressly acknowledges that, in consideration of the agreements of Seller herein, and except as otherwise expressly specified herein, SELLER MAKES

NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY

OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO ANY WARRANTY

OF CONDITION, HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE, OF THE PROPERTY. In particular, but without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Seller makes no representations or warranties with respect to the use, condition, title, occupation or management of the Property, economic viability, value, safety or security issues relating to the Property, compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters, compliance with covenants, conditions and restrictions (whether or not of record), other local, municipal, regional, state or federal requirements, or other statutes, laws, codes, ordinances, regulations or requirements. City acknowledges that it is entering into this Agreement on the basis of City’s own investigation of the physical and environmental conditions of the Property and all other matters affecting the Property, including without limitation subsurface or latent conditions, and City assumes the risk that adverse physical and environmental conditions may not have been revealed by its investigations. Without limiting the foregoing, City acknowledges that neither Seller nor anyone on behalf of Seller has made any representations, statements or warranties regarding the location of the Property within any natural hazard areas or other areas, or with respect to any other matters of concern, which are the subject of the Natural Hazard Disclosure Report(s).

City acknowledges and agrees that Seller has not made, is not making and shall make no representation or warranty of any nature concerning the accuracy or completeness of the Natural Hazard Disclosure Report(s), except as expressly provided in this Agreement, notwithstanding any statement, term or condition set forth in the Natural Hazard Disclosure Report(s). Seller shall have absolutely no liability if the Property is located in any natural hazard area or other area of concern, and City assumes all risk relating thereto. City acknowledges and agrees that the matters set forth in the Natural Hazard Disclosure Report(s) may change on or prior to the Closing and that Seller has no obligation to update, modify or supplement the Natural Hazard Disclosure Report(s).

As of the expiration of the Contingency Period, City agrees that it shall have conducted or shall have been provided with the opportunity to conduct, such investigations of the Property, including, but not limited to, the physical and environmental condition thereof, as City reasonably deems necessary to satisfy itself as to the condition of the Property, and will rely solely upon the same and not upon any information provided by or on behalf of Seller or its agents or employees with respect thereto, other than the representations and warranties of Seller that are expressly set Resolution No. 6690

Page 24 of 65 ends

22 1677\10\3201588.1
forth in this Agreement. City further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property, by Seller, any of the Seller Parties, any agent of Seller or any third party except for Seller’s express representations and warranties in this Agreement. Seller is not liable or bound in any manner by any oral or written statements, representations or information pertaining to the Property furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to in this Agreement. City acknowledges that the Purchase Price reflects the “AS IS, WHERE IS” nature of this sale and any faults, liabilities, defects or other adverse matters that may be associated with the Property, except as to Seller’s representations and warranties in Section 10.

City, with City’s counsel, has fully reviewed the disclaimers, waivers and other provisions set forth in this Agreement, and understands the significance and effect thereof. City acknowledges and agrees that the disclaimers and other agreements set forth herein are an integral part of this Agreement, and that Seller would not have agreed to sell the Property to City for the Purchase Price without the disclaimers, waivers and other provisions set forth in this Agreement. The terms and conditions of this Section 19.2 will expressly survive the Closing and will not merge with the provisions of any closing documents.

19.3. RELEASE OF CLAIMS. Effective from and after the Closing, except for actions to enforce this Agreement, as limited by the terms and conditions of this Agreement and for actions by the City in its governmental or regulatory capacity, City hereby waives, releases, acquits, and forever discharges Seller, and Seller's agents, directors, officers, and employees to the maximum extent permitted by law, of and from any and all claims, actions, causes of action, demands, rights, liabilities, damages, losses, costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, arising from or relating to the (including but not limited to the existence of any of Hazardous Materials on or about) the Property. In no event will the City's release of Seller include matters arising Seller's breach, fraud or intentional misrepresentation or conduct, a claim for the return of any deposit, Seller's indemnification obligations under this Agreement, Seller's obligations under any other agreements with the City, Seller's obligations under any other provision that survives this Agreement, matters arising from the remainder of the Site or Seller's actions or omissions following Closing. City expressly waives its rights granted under the provisions of any law that provides that a general release does not extend to claims that buyer does not know or suspect to exist in its favor at the time of executing the release, which if known by it must have materially affected its agreement to release Seller including, without limitation, California Civil Code §1542, which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR

OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER

FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM

OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

The provisions of this Section will survive the Closing.

Seller's Initials City's Initials
Resolution No. 6690

Page 25 of 65 ends

23 1677\10\3201588.1

19.4. Natural Hazard Disclosures. City and Seller acknowledge that Seller may be required to disclose if the Property lies within the following natural hazard areas or zones: (a) a special flood hazard area designated by the Federal Emergency Management Agency (California Civil Code Section 1102.17); (b) an area of potential flooding (California Government Code Section 8589.4); (c) a very high fire hazard severity zone (California Government Code Section 51183.5); (d) a wild land area that may contain substantial forest fire risks and hazards (Public Resources Code Section 4136); (e) an earthquake fault zone (California Public Resources Code Section 2621.9); or (f) a seismic hazard zone (Public Resources Code Section 2694) (collectively, the “Natural Hazard Matters”). Prior to the expiration of the Contingency Period, Seller will engage through Escrow Holder the services of an organization satisfactory to Seller and Escrow Holder (which, in such capacity, is herein called the “Natural Hazard Expert”) to examine maps and other information specifically made available to the public by government agencies for the purposes of enabling Seller to fulfill its disclosure obligations, if and to the extent such obligations exist, with respect to the natural hazards referred to above and to report the result of its examination to City and Seller in writing, which report shall be delivered to City the “Natural Hazard Disclosure Report(s)”). City acknowledges that the Property may be within a special study zone as designated under the Alquist-Priolo-Geologic Hazard Act (Section 2621 et seq. of the California Public Resources Code); if the Property is so located, construction or development on the Property of any structures intended for human occupancy may be subject to the findings of a geological report prepared by a geologist registered in the State of California.

20. MISCELLANEOUS PROVISIONS.

20.1. Right of Possession and Use. It is agreed and confirmed by the parties hereto that, notwithstanding the other provisions in this Agreement, the right of possession and use of the Fee Property by City, and/or its designees or assignees including the right to remove and dispose of improvements, and install and connect utilities shall commence following the Closing Date and that the Purchase Price includes, but is not limited to, full payment for such possession and use, including interest and damages if any, from said date.

20.2. Governing Law. This Agreement and the legal relations between the parties hereto shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to its principles of conflicts of law.

20.3. Entire Agreement. This Agreement, including the exhibits and schedules attached hereto, constitutes the entire agreement between City and Seller pertaining to the subject matter hereof and supersedes all prior agreements, understandings, letters of intent, negotiations and discussions, whether oral or written, of the parties.

20.4. Modifications; Waiver. No supplement, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other Resolution No. 6690

Page 26 of 65 ends

24 1677\10\3201588.1
provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.

20.5. Notices. All notices, consents, requests, reports, demands or other communications hereunder (collectively, "Notices") shall be in writing and may be given personally or by reputable overnight delivery service to each of the parties at the following addresses:

To City:

With a copy to:

City of Menlo Park
Attn: City Manager
701 Laurel Street
Menlo Park, CA 94025
City of Menlo Park
Attn: Public Works Director
701 Laurel Street
Menlo Park, CA 94025
To Seller: Menlo Station Development, LLC
Attn: David Wollenberg
800 El Camino Real Suite 210
Menlo Park, CA 94025
or to such other address or such other person as the addressee party shall have last designated by written notice to the other party. Notices shall have been deemed to have been delivered on the date of delivery or refusal. All copies of Notices (i.e., those provided to any person or entity other than Seller, City, or Escrow Holder) shall be given as a courtesy only, and the failure or inability to deliver any courtesy copy of any Notice will not invalidate the Notice given to Seller, City, or Escrow Holder.

20.6. Severability. Any provision or part of this Agreement which is invalid or unenforceable in any situation in any jurisdiction shall, as to such situation and such jurisdiction, be ineffective only to the extent of such invalidity and shall not affect the enforceability of the remaining provisions hereof or the validity or enforceability of any such provision in any other situation or in any other jurisdiction.

20.7. Successors and Assigns; Third Parties. All the rights, duties, benefits, liabilities and obligations of the parties shall inure to the benefit of, and be binding upon, their respective successors and assigns. Except as specifically set forth or referred to herein, nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto and their successors or assigns, any rights or remedies under or by reason of this Agreement.

20.8. Counterparts. This Agreement may be executed in as many counterparts as may be deemed necessary and convenient, and by the different parties hereto on separate counterparts, Resolution No. 6690

Page 27 of 65 ends

25 1677\10\3201588.1
each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute one and the same instrument.

20.9. Headings. The section headings of this Agreement are for convenience of reference only and shall not be deemed to modify, explain, restrict, alter or affect the meaning or interpretation of any provision hereof.

20.10. Time of the Essence. Time shall be of the essence with respect to all matters contemplated by this Agreement.

20.11. Further Assurances. In addition to the actions recited herein and contemplated to be performed, executed, and/or delivered by Seller and City, Seller and City agree to perform, execute and/or deliver or cause to be performed, executed and/or delivered at the Closing or after the Closing any and all such further acts, instruments, deeds and assurances as may be reasonably required to consummate the transactions contemplated hereby.

20.12. Joint and Several Liability. If Seller consists of more than one person or entity, the obligations of each person or entity executing this Agreement as Seller shall be joint and several.

20.13. Number and Gender. Whenever the singular number is used, and when required by the context, the same includes the plural, and the masculine gender includes the feminine and neuter genders.

20.14. Construction. This Agreement shall not be construed more strictly against one party hereto than against any other party hereto merely by virtue of the fact that it may have been prepared by counsel for one of the parties.

20.15. Exhibits. All exhibits attached hereto are hereby incorporated by reference as though set out in full herein.

20.16. Attorneys' Fees. If any action is brought by either party against the other party, relating to or arising out of this Agreement, the transaction described herein or the enforcement hereof, the prevailing party shall be entitled to recover from the other party reasonable attorneys' fees, costs and expenses incurred in connection with the prosecution or defense of such action.

The provisions of this Section shall survive the entry of any judgment, and shall not merge, or be deemed to have merged, into any judgment.

20.17. Business Days. As used herein, the term "Business Day" or “business day” shall mean a day that is not a Saturday, Sunday or legal holiday. If the date for the performance of any covenant or obligation under this Agreement shall fall on a Saturday, Sunday or legal holiday under the laws of the State of California, the date for performance thereof shall be extended to the next Business Day.

20.18. Memorandum of Purchase Agreement. If City delivers an Approval Notice pursuant to Section 7, then within ten (10) days after the expiration of the Contingency Period, at the request of the City the parties shall record a Memorandum of this Agreement substantially in the form attached as Exhibit F. As a condition to the recordation of the Memorandum of Agreement, City shall concurrently with depositing its signed Memorandum of Agreement into Resolution No. 6690

Page 28 of 65 ends

26 1677\10\3201588.1
escrow, execute, acknowledge and deposit into escrow (a) a quitclaim deed or other instrument sufficient to remove the Memorandum of Agreement from record (the "Memorandum Termination"), and (b) irrevocable escrow instructions directing the Escrow Holder to record the Memorandum Termination upon the termination of this Agreement. In the event the Memorandum of Agreement is recorded in the Official Records of San Mateo County pursuant to the terms hereof and this Agreement alter terminates prior to Closing, then, City and Seller shall promptly execute and deliver any documents reasonably required by the Title Company to remove the Memorandum of Agreement from record title

20.19. City's Design and Construction. The Project includes a tunnel that will traverse the adjacent Caltrain right of way. The City agrees that the City’s development (including design and construction) of the Project will not create direct access from the tunnel to the Site without the prior written consent of the Seller, unless such access is required by an instrument or document recorded against the Property that constitutes a Permitted Exception, including but not limited to the 1981 Easement. The provisions of this Section shall survive until such time as the construction of the Project is completed. Nothing in this Section shall obligate the City to construct the Project or from later exercising its powers in eminent domain.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set forth next to their respective signatures.

CITY: CITY OF MENLO PARK
______________________________
Starla L. Jerome-Robinson, City Manager
APPROVED AS TO FORM:

By:

Heather Gould, Special Counsel
ATTEST:
_______________________
Judi A. Herren, City Clerk
Resolution No. 6690

Page 29 of 65 ends

27 1677\10\3201588.1
SELLER:

MENLO STATION DEVELOPMENT, LLC,
By: The Cortana Corporation, a California
corporation
Its: Manager
By: ____________________________
Title: ____________________________
Acceptance by Lawyer's Title
Lawyer's Title Company acknowledges receipt of the foregoing Agreement and accepts the instructions contained herein.

LAWYER'S TITLE COMPANY
By
Name
Title
Date of Execution by Title Company: _____________________ Resolution No. 6690

Page 30 of 65 ends

28 1677\10\3201588.1
List of exhibits
A. Site Map
B. Property Description
C. Grant Deed
D. Temporary Construction Easement
E. Temporary Access Easement
F. Memo of Purchase Agreement
G. Description of Physical Inspection
H. Commercial Leases
Resolution No. 6690

Page 31 of 65 ends

A-1
1677\10\3201588.1

EXHIBIT A
SITE MAP*
*Note that the Property to be acquired is only a portion of the Site (highlighted in yellow) and is shown in more detail in Exhibit B.

Resolution No. 6690

Page 32 of 65 ends

B-1
1677\10\3201588.1

EXHIBIT B
Property Description
(R/W Acquisition Area = Fee Property)
TCE and Temporary Access Easement = Easement Property.

Resolution No. 6690

Page 33 of 65 ends

B1-1
1677\10\3201588.1
EXHIBIT B-1
Fee Property (Plat and Legal Description.)
Resolution No. 6690

Page 34 of 65 ends

B1
-2
1677\10\3201588.1
Resolution No. 6690

Page 35 of 65 ends

B2-1
1677\10\3201588.1
EXHIBIT B-2
Easement Property (Plat and Legal Description.)
Resolution No. 6690

Page 36 of 65 ends

B2
-2
1677\10\3201588.1
Resolution No. 6690

Page 37 of 65 ends

B2
-3
1677\10\3201588.1
Resolution No. 6690

Page 38 of 65 ends

C-1
1677\10\3201588.1

EXHIBIT C

GRANT DEED
RECORDING REQUESTED BY:

City of Menlo Park
WHEN RECORDED MAIL TO:

City of Menlo Park
701 Laurel Street
Menlo Park, California 94025
Attn: City Clerk
APN: 071-333-200 (portion of)
MAIL TAX STATEMENTS TO: SAME AS ABOVE
SPACE ABOVE FOR RECORDER’S USE
This document is exempt from the payment of a recording fee pursuant to Government Code § 27383 and §6103, and Documentary Transfer Tax of $0.00, exempt from Documentary Transfer Tax pursuant to California Revenue and Taxation Code Section 11922 (Governmental Agency Acquiring Title).

GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, MENLO STATION DEVELOPMENT, LLC, a California limited liability company ("Grantor") HEREBY GRANT(S) TO CITY OF MENLO PARK, A MUNICIPAL CORPORATION (“Grantee”), the following Property.

That certain property in the County of San Mateo, State of California, more particularly described in the legal description as Exhibit A and depicted in plat map as Exhibit B, attached hereto and by this reference incorporated herein.

THE PROPERTY IS CONVEYED TO GRANTEE SUBJECT TO THE FOLLOWING: (a) easements, claims of easements, and other encumbrances and matters that are matters of public record; and (b) encroachments, overlaps, boundary line disputes, or other matters which would be disclosed by an accurate survey or inspection of the Property.

THE PROPERTY IS CONVEYED TO
GRANTEES SUBJECT TO THE FOLLOWING:

GRANTOR
Resolution No. 6690

Page 39 of 65 ends

C-2
1677\10\3201588.1
Dated: _____________________, 20__
Menlo Station Development, LLC, a California
limited liability company
By: The Cortana Corporation, a California
corporation
Its: Manager
Name: __________________________

Title: ___________________________

CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document, to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

STATE OF CALIFORNIA
COUNTY OF ______________
On this _____ day of _______________, 20__, before me, ____________________________, a Notary Public in and for the State of California, personally appeared _______________________________________________ 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 the day and year first above written. ____________________________________

NOTARY PUBLIC
Resolution No. 6690

Page 40 of 65 ends

C1-1
1677\10\3201588.1
Exhibit C-1
Exhibit C to Grant Deed
(Certificate of Acceptance)

CERTIFICATE OF ACCEPTANCE
(Pursuant to Government Code §27281)
This is to certify that the interest in real property conveyed by the Grant Deed from Menlo Station Development, LLC, a California limited liability company, to the City of Menlo Park, a municipal corporation, being a portion of a parcel located at 700 El Camino Real, Menlo Park, CA (Assessor’s Parcel Number: 071- 333-200 (portion) is hereby accepted on behalf of the City of Menlo Park by its City Manager pursuant to authority conferred by Resolution No. 20__-_________, adopted by order of the Menlo Park City Council on , 20___, and the Grantee consents to recordation thereof by its duly authorized officer.

Dated: _____________________ By: _____________________________ Starla L. Jerome-Robinson
City Manager
ATTEST:

By:

Judi A. Herren, City Clerk
Approved as to Form:

By: _______________________
Heather Gould, Special Counsel
Resolution No. 6690

Page 41 of 65 ends

D-1
1677\10\3201588.1

EXHIBIT D

TEMPORARY CONSTRUCTION EASEMENT

RECORDING REQUESTED BY
City of Menlo Park
WHEN RECORDED MAIL TO:

City of Menlo Park
701 Laurel Street
Menlo Park, CA 94025
Attn: City Clerk
No Tax Due
Exempt Transfer
Rev.& Tax Code § 11922
Exempt from recording fee: Gov. Code § 27383
SPACE ABOVE FOR RECORDER’S USE ONLY
APN: Portion of 071-333-200

CITY OF MENLO PARK

TEMPORARY CONSTRUCTION EASEMENT
MENLO STATION DEVELOPMENT, LLC, a California limited liability company, hereinafter referred to as “GRANTOR”, GRANTS to CITY OF MENLO PARK, a Municipal Corporation, hereinafter referred to as "GRANTEE", in the County of San Mateo, State of California, a temporary work area easement and right-of-way, and access thereto (collectively, the "Easement”), in, on, over and across the land described in Exhibit “A” and shown in the site map attached as Exhibit “B” attached hereto and made a part hereof (the “Burdened Property” or the “Easement Area”) for the benefit of the real property described on Exhibit B-1 attached hereto and made a part hereof (the “Benefitted Property”). This Temporary Construction Easement (the "Easement Agreement") is made pursuant to that certain Purchase and Sale Agreement between Grantor and Grantee dated _________________, 2022 (the “Purchase and Sale Agreement”) pursuant to which Grantee acquired the Benefitted Property.

1. The Easement shall commence on the date that the Owner, or Owner’s representative or contractor enters onto the Easement Area to commence construction of the City’s Middle Avenue Bicycle Tunnel Project (the “Commencement Date”). The Commencement Date shall be not later than ten (10) months from the date of recordation of this Temporary Access Easement. The Easement granted hereunder shall continue until the date that is 12 months following the Commencement Date (the “Expiration Date”). Grantee shall give written notice to Owner at least thirty (30) days prior to the Commencement Date together with a written description of the work or other activities to be performed, the name of all contractors or subcontractors who Resolution No. 6690

Page 42 of 65 ends

D-2
1677\10\3201588.1
will be performing work or otherwise performing activities in the Easement Area, the insurance documentation required by Section 6, and the name and contact information of the individual or individuals at the City who are supervising such work or other activities. If requested by Owner or Grantee, Grantee and Owner shall execute an amendment to this Easement Agreement to confirm the Commencement Date and the Expiration Date. Notwithstanding the foregoing, in all events, the Easement shall terminate not later than 24 months after the date that Grantee consummates the purchase of the Benefitted Property from Grantor.

2. Grantee’s rights under this agreement include exclusive use of the portion of the Easement Area show on Exhibit B as the "TCE". The access to such portion of the Easement Area shall be in Exhibit B as "Temporary Access Easement" and shall be non-exclusive. The Easement shall be used and enjoyed by the City in such a manner so as not to unreasonably interfere with, obstruct, or delay the conduct of the business at any time of Owner or of any Owner’s employees, agents, contractors, tenants, subtenants, and other occupants and invitees (collectively, the “Owner’s Invitees”).

3. The grant of easement hereunder provides Grantee, its representatives, agents, contractors, subcontractors, employees, and officers (“Permittees”) the right to access and use the Easement Area for construction staging and temporary storage purposes and temporary construction work activities, including but not limited to the right to temporarily deposit fill, soils and excavated materials thereon, to move, store and remove equipment and supplies, erect and remove temporary structures on the land, fence the exclusive portion of the Easement Area, and to perform any other work reasonably necessary and incident to the construction of the Middle Avenue Bicycle and Pedestrian Rail Crossing Project, together with the right to trim, cut, fell and remove therefrom underbrush, trees, obstructions, and any other vegetation, structures, or obstacles within the limits of the right-of-way; provided, however, that (a) Grantee’s and the Permittees’ use of the Easement Area shall not interfere with the use of the Easement Area in connection with the customary operation of the Burdened Property.

For any damage caused by the City in connection with this Agreement, the City at its sole cost and expense shall make all repairs and replacements as may be necessary to restore the Easement Area to substantially the same condition prior to the Commencement Date. Without limiting the foregoing, in the event Grantee excavates and removes pavement or soil from the Easement Area, prior to the termination of the Easement, Grantee shall replace any removed soil with controlled density fill or compacted backfill and repave and, if applicable, restripe the affected portion of the Easement Area to a condition substantially similar to the condition on the Commencement Date. Prior to the termination of the Easement, Grantee shall also remove any temporary construction fencing and any of Grantee’s equipment or personal property from the Easement Area. The obligation of the City under this paragraph shall survive any termination of this Easement Agreement.

4. The City shall not allow any Permittee to spill, store, handle or otherwise use within the Easement Area any materials that are defined as “hazardous” under applicable laws, excepting those typically used in connection with construction contemplated in Resolution No. 6690

Page 43 of 65 ends

D-3
1677\10\3201588.1
connection of the type anticipated by the City. All work or other activities undertaken by the City or any Permittee shall be done in a good and workmanlike manner and in compliance with all applicable ordinances, codes, laws and other requirements of the City and any other governmental authorities having jurisdiction. The obligation of the City under this paragraph shall survive any termination of this Easement Agreement.

5. The City, the Permittees, and their respective successors and assigns shall indemnify, defend, protect, and hold harmless Owner Owner’s Invitees, and Owner’s managers, members, partners, officers, directors, trustees, employees, property managers, agents, representatives, and their respective successors and assigns (collectively “Indemnitees”) free and harmless from and against all liabilities, losses, judgments, claims, penalties, costs, and expenses (including reasonable attorneys’ fees) arising from or in connection with (a) the City’s breach of this Easement Agreement and (b) for death, physical injury or damage or destruction of property occurring as a result of or otherwise arising from the City’s use of the Easement except to the extent any liability is attributable to the negligence or willful misconduct of one or more Indemnitees. The foregoing obligation of the City to defend, indemnify, protect, and hold harmless the Indemnitees shall survive any termination of this Easement Agreement.

6. The City at all times shall maintain in effect bodily injury and property damage liability insurance for all operations, the Work, contractual obligations and products and completed operations as set forth in Exhibit “C” to this Easement Agreement. Such coverages, terms and limits are minimum requirements (the “Required Insurance”) to be provided by the City and its contractors, subcontractors, engineers, and other design professionals (collectively, “Contractors”). All Contractors shall procure and maintain for the duration of the work insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work by each Contractor, his agents, representatives, employees or subcontractors as set forth on Exhibit C.

7. Nothing herein contained shall be deemed to be a gift or dedication of the Easement Area or any portion of the Property to the general public or for the general public or for any public purposes whatsoever, it being the intention of Owner and the City that this Agreement shall be strictly limited to and for the purposes expressed herein. The right of any person to make any use whatsoever of the Easement Area or any portion thereof, other than any use expressly allowed herein, is by permission and subject to the control of the Owner and its successors and assigns as the owner of the Property.

8. No waiver of any default of any obligation by any party hereto shall be implied from any omission by any other party to take any action with respect to such default. Nothing in this Agreement shall be deemed or construed by any party or by any third person to create the relationship of principal and agent, or of limited or general partners, or of joint venturers, or of any other association among such parties.

Resolution No. 6690

Page 44 of 65 ends

D-4
1677\10\3201588.1

9. In the event a party institutes any legal action or proceeding for the interpretation or enforcement of any right or obligation contained herein, the prevailing party after a final adjudication shall be entitled to recover its costs and reasonable attorneys’ fees incurred in the preparation and prosecution of such action or proceeding.

This instrument shall bind and inure to the benefit of the successors and assigns of the parties hereto.

IN WITNESS WHEREOF the first parties have executed this Temporary Construction Easement this day of , 20 .

GRANTOR
Dated: _____________________, 20__
Menlo Station Development, LLC, a California
limited liability company
By: The Cortana Corporation, a California
corporation
Its: Manager
Name: __________________________

Title: ___________________________

Resolution No. 6690

Page 45 of 65 ends

D1-1
1677\10\3201588.1
EXHIBIT D-1

EXHIBIT C TO TEMPORARY CONSTRUCTION EASEMENT
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:

1. Insurance Services Office Commercial General Liability "occurrence" form CG 0001, or its equivalent.

2. Insurance Services Office form number CA 0001 (Ed. 1/78) covering Automobile Liability, code 1 "any auto" and endorsement CA 0025.

3. Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance.

B. Minimum Limits of Insurance. Contractor shall maintain limits no less than lesser of the current standard limits required by the City of Menlo Park, or the following:

1. Commercial General Liability: $2,000,000 annual aggregate for bodily injury, personal injury and property damage; and with a minimum of $1,000,000.00 per occurrence.

2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage.

3. Workers' Compensation and Employers Liability: Workers' compensation limits as required by the Labor Code of the State of California and Employers Liability limits of $1,000,000 per accident.

4. Errors and Omissions: All engineers or other design professionals shall carry Professional Errors and Omissions Liability insurance with limits of not less than $1,000,000 and with deductibles in amounts reasonably acceptable to the Owner.

Such insurance shall be maintained for a period of one (1) year following completion of the work.

C. At no expense to Owner, the City shall provide an additional insured endorsement approved by Owner naming Owner and the Owner’s property manager, and their respective officers, directors, partners, members and employees, as additional insureds with respect to the City’s use, maintenance, repairs and other activities on or about the Property. The insurance afforded by the policy for the benefit of the additional insureds will be primary with respect to claims relating to the City’s use, maintenance, repairs, and other activities on or about the Property, and no contribution shall be permitted nor required from any insurance or self-insurance maintained by the additional insureds. Concurrently with the execution of the Agreement, the City will provide to Owner original certificates of insurance and endorsements showing the Required Insurance to be in force. Certificates of insurance alone, without the requisite endorsements, are not acceptable to satisfy the provisions of the Required Insurance.

Resolution No. 6690

Page 46 of 65 ends

D1-2
1677\10\3201588.1
D. The commercial liability insurance policy shall include no exclusionary language or limitations relating to soils subsidence or earth movement of any kind regardless of cause for any contractor, subcontractor or other Permittee engaged in any grading or trenching activities.

Each Party further agrees that its respective insurance company shall have no right of subrogation against the other Party on account of such loss, and each Party shall procure from its respective insurer under all policies of property insurance, a waiver of all rights against the other Party which the insurers might otherwise have under such policies.

Resolution No. 6690

Page 47 of 65 ends

D2-1
1677\10\3201588.1
EXHIBIT D-2

EXHIBIT TO TEMPORARY CONSTRUCTION EASEMENT
Certificate of Acceptance

CERTIFICATE OF ACCEPTANCE
(Temporary Construction Easement)
(Pursuant to Government Code §27281)
This is to certify that the interest in real property conveyed by the Temporary Construction Easement from Menlo Station Development, LLC to the City of Menlo Park, a municipal corporation, being a portion of a parcel located at 700 El Camino Real, Menlo Park, CA (Assessor’s Parcel Number: 071-333-200 (portion) is hereby accepted on behalf of the City of Menlo Park by its City Manager pursuant to authority conferred by Resolution No. 20__-___ , adopted by order of the Menlo Park City Council on
, 20__, and the Grantee consents to recordation thereof by its duly authorized officer.

Dated: _____________________ By: _____________________________ Starla L. Jerome-Robinson
City Manager
ATTEST:

By:

Judi A. Herren, City Clerk
Approved as to Form:

By: _______________________
Heather Gould, Special Counsel
Resolution No. 6690

Page 48 of 65 ends

E-1
1677\10\3201588.1

EXHIBIT E

TEMPORARY ACCESS EASEMENT

RECORDING REQUESTED BY
City of Menlo Park
WHEN RECORDED MAIL TO:

CITY OF MENLO PARK

TEMPORARY ACCESS EASEMENT
MENLO STATION DEVELOPMENT, LLC, a California limited liability company hereinafter referred to as “GRANTOR”, GRANTS to CITY OF MENLO PARK, a Municipal Corporation, hereinafter referred to as "GRANTEE", in the County of San Mateo, State of California, a temporary and non-exclusive right-of-way and access easement (collectively, “the Easement”), in, on, over and across the land described in Exhibit “A” and shown in the site map attached as Exhibit “B” (the “Burdened Property”) attached hereto and made a part hereto (the "Easement Area") for the benefit of the real property described on Exhibit B-1 attached hereto and made a part hereof (the “Benefitted Property”). This Temporary Access Easement (the "Easement Agreement") is made pursuant to that certain Purchase and Sale Agreement between Grantor and Grantee dated _________________, 2022 (the “Purchase and Sale Agreement”).

Notwithstanding the foregoing, for the avoidance of doubt, in all events the Easement shall terminate not later than 24 months after the date that Grantee consummates the purchase of the Benefitted Property from Grantor.

Resolution No. 6690

Page 49 of 65 ends

E-2
1677\10\3201588.1

2. The grant of easement hereunder provides Grantee, its representatives, agents, contractors, subcontractors, employees, and officers (“Permittees”) the right to use the Easement Area solely for access to the Benefitted Property and the TCE area shown on Exhibit B as "Temporary Access Easement" and no construction or other activities shall be permitted in the Easement Area. At its sole cost, the City shall keep the Easement Area free of dirt, mud and debris left by vehicles or equipment used by contractors, subcontractors or other Permittees and shall clean the Easement Area on a daily basis to a standard of cleanliness consistent with Grantor’s use of its property as a commercial development. For any damage caused by the City or Permittees in connection with this Easement Agreement, the City at its sole cost and expense shall make all repairs and replacements as may be necessary to restore the Easement Area (including any required soil compaction, repaving and re-striping) to substantially the same condition prior to the Commencement Date. The obligation of the City under this paragraph shall survive any termination of this Easement Agreement.

3. The City shall not allow any Permittee to spill, store, handle or otherwise use within the Easement Area any materials that are defined as “hazardous” under applicable laws, excepting those typically used in connection with construction contemplated in connection of the type anticipated by the City.

4. The City, the Permittees, and their respective successors and assigns shall indemnify, defend, protect, and hold harmless Owner Owner’s Invitees, and Owner’s managers, members, partners, officers, directors, trustees, employees, property managers, agents, representatives, and their respective successors and assigns (collectively “Indemnitees”) free and harmless from and against all liabilities, losses, judgments, claims, penalties, costs, and expenses (including reasonable attorneys’ fees) arising from or in connection with (a) the City’s breach of this Easement Agreement and (b) for death, physical injury or damage or destruction of property occurring as a result of or otherwise arising from the City’s use of the Easement except to the extent any liability is attributable to the negligence or willful misconduct of one or more Indemnitees. The foregoing obligation of the City to defend, indemnify, protect, and hold harmless the Indemnitees shall survive any termination of this Easement Agreement.

5. The City at all times shall maintain in effect bodily injury and property damage liability insurance for all operations, the Work, contractual obligations and products and completed operations as set forth in Exhibit “C” to this Easement Agreement. Such coverages, terms and limits are minimum requirements (the “Required Insurance”) to be provided by the City and its contractors, subcontractors, engineers, and other design professionals (collectively, “Contractors”). All Contractors shall procure and maintain for the duration of the work insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work by each Contractor, his agents, representatives, employees or subcontractors as set forth on Exhibit C.

Resolution No. 6690

Page 50 of 65 ends

E-3
1677\10\3201588.1

6. Nothing herein contained shall be deemed to be a gift or dedication of the Easement Area or any portion of the Property to the general public or for the general public or for any public purposes whatsoever, it being the intention of Owner and the City that this Agreement shall be strictly limited to and for the purposes expressed herein. The right of any person to make any use whatsoever of the Easement Area or any portion thereof, other than any use expressly allowed herein, is by permission and subject to the control of the Owner and its successors and assigns as the owner of the Property.

7. No waiver of any default of any obligation by any party hereto shall be implied from any omission by any other party to take any action with respect to such default. Nothing in this Agreement shall be deemed or construed by any party or by any third person to create the relationship of principal and agent, or of limited or general partners, or of joint venturers, or of any other association among such parties.

8. In the event a party institutes any legal action or proceeding for the interpretation or enforcement of any right or obligation contained herein, the prevailing party after a final adjudication shall be entitled to recover its costs and reasonable attorneys’ fees incurred in the preparation and prosecution of such action or proceeding.

9. Grantee’s rights under this agreement include non- exclusive use of the portion of the Easement Area show on Exhibit B as "Temporary Access Easement".

10. The grant of easement hereunder providers Grantee, its representatives, agents, contractors, subcontractors, employees, and officers the right to access and use the Easement Area for access to the TCE area shown on Exhibit B. The right of any person to make any use whatsoever of the Easement Area or any portion thereof, other than any use expressly allowed herein is by permission and subject to the control of the Owner and its successors and assigns as the owner of the Easement Area.

This instrument shall bind and inure to the benefit of the successors and assigns of the parties hereto.

IN WITNESS WHEREOF the first parties have executed this Temporary Construction Easement this day of , 20 .

GRANTOR
Resolution No. 6690

Page 51 of 65 ends

E-4
1677\10\3201588.1
Dated: _____________________, 20__
Menlo Station Development, LLC, a California
limited liability company
Name: __________________________

Title: ___________________________

Resolution No. 6690

Page 52 of 65 ends

E1-1
1677\10\3201588.1
EXHIBIT E-1