ASSIGNMENT AND ASSUMPTION AGREEMENT
OF AIRSPACE GROUND SUBLEASE
corporation ("Assignor"). St. Mary's Dining Room, a California non-profit corporation "Assignee"), and the City of Stockton, a municipa) corporation (the "City"). with reference to the following facts:
A. City lias lcased from the State of Califomia, Department of Transportation ("Caltrans") tliat ccrtain ground airspace as described in Airspace Ground Lease No. 10-S.?XOO5- 0700 (tlie "Caltrans Lease").
B. City, as sublessor, ltas subleased certain premises (tlie "Premises") under the Camans Lease to Assignor, as sublessee, pursuant to and as particularly described in that certain Airspace Ground Sublease ctitered into betwecn City and Assignor, dated July 23, 2003 (thc "Sublease Agreement," attached liereto as Exhibtt A and incorporated by this reference). Tlic Sublease Agrceinent was twice extended by the City and Assignor, witli tlie term of t)ie Sublease Agreement's current renewal period to run until December 31, 2027. There are no additional renewal periods under the Sublease Agreement.
C. AssignorhasutilizedthePremisesfortliepurposeofprovidinghousingtohomeless persons within the community, and in furtherance thereof has made yarious improyements to the Premises including, but not limited to, the installation and/or construction of permanent buildings and manufactured facilities currently referrcd to or described as the (l) "Administration Building," (2) "Women's Overflow Building," (3) "Family Shelter Building," (4) Men's Ovemight Shelter Building," (5) "Maintenance Building," (6) "Navigation Center" (a 3-story building, currently under construction, that has been planned to include office space, community services, and additional beds), atid (7) five single trailers (collectively the "Improvements"). Subject to the City forgiving tlic Community Development Block Graiit Notcs to Assignor, and the San Joaquin County Community Development Dcpartment forgiving the May 5, 2017, $270,000 Note ("County Note") thc improvements are currently owned by Assignor atid, to Assignor's knowledge, will be free and clear of any n'ionetary liens wlien these debts are f'orgiven. Also situatcd upon tlie Premiscs arc various fixtuits, furniture. and equipment owned by Assignor which, to Assignor's knowledge, following tlic City forgi'ving the Community Dcvelopment Block Grant Notes to Assignor, will bc free aiid clcar of any monetary liens (collectively the "Personal Property"). Assignor agrees to cooperate witli the City in requesting that the County Note be forgiven by San Joaquin County along witli requestiiig a reconveyance of the deed of trust, dated May 5, 2017 securing the County Note ("Deed of Trust"). Tlic City may also request that tlie County restructurc tlic tcrms of tlic County Note. Sliould the County of SanJoaquin proceed to collect on the County Note, the City agrees to be responsible to pay offthe County Note. Assignee acknowledges tliat tliere is a Deed of Trust against the leascliold estate that is the subject of the Sublease Agreement. By agreeing to accept the Sublease Agreement, Assignee is not agreeing to assume aiiy liability under tlie Couxity Notc.
D. Pursuant to California Corporations Code 83 5913, Assignor must give writtennotice to the Attorney General for the State of California twenty (20) days before it sells, leases,
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convcys, exchanges, transfers or otherwise disposes of all or substantially all of its assets, unless the Attorney General for tbe State of California has given Assignor a written waiver to tlieproposed transaction.
E. To minimize or eliminate tlie risk of interruption to the vital services provided by Assignor tO the community,, tl'ie parties lxcreo arc entering into this Agreement. Specifically, pursuaiit tO tlle tcnnS and COndiLiOnS Set fOrtll belOw, AssignOr dcsires tO transfer ilS intcrcSt ill thC Sublease Agreement, the Improvements, and tlic Pcrsona) Property (collectively, the "Assets") to Assignec so tliat Assigncc may continue witli sucli services; Assignee desires to assume all of Assignor's rights, title, interests and obligations under the Sublease Agreement whicli arise on and after the Effective Date; and tlie City desires to consent to tlie assignment and assumption of the Sublease Agrcement from Assignor to Assignee and to provide tlie releases contained iierein.
F. Tlic parties acknowledge that Caltraiis has provided written approval for tlie assignment of tlie Subleasc Agreenient.
WHEREAS, any capitalized tenn used, but not defined, in tltis Agreement shall have kite meanixig set fortli in the Sublease Agreement.
NOW, THEREFORE, in consideration oF the foregoing, of the mutual promises of the parties hereto and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties mutually agree as follows:
1. Contingency. Except for City's obligation to proyidc funding to Assignor under Section 12 of this Agreement, the terms of this Agreement are expressly conditioned on the office of tlie Attorney General for the State of Califomia not notifying Assignor that it objects to tliis Agreement within twenty (20) days following Assignor's delivery of the Attorney General Notice attached hereto as Exhibit B (Cal. Code Regs. tit. 11, § 999.1-999.2 aiid Cal. Corp. § 5913). If the Attorney General for tlie State of California objects to tliis Agreemcm, in whole or in part, tlien Assignor, Assignee. or the City, upon notice to the otlier parties, may elect to terminate tliis Agreement ("AG Approvar'). Upon termination, all parties sl'iall be relievcd from all obligations aiid liability under this Agrcement.
2. . Assignor, on the Effective Date, hereby assigns axid transfers all of its riglits, title, and interest, in and to tlie Assets, and any and al} obligations relating thereto arising on or after tlie Effective Date, to Assignee. Effective as of tlie Effective Date, Assignee shall be fully rcsponsible for any and all obligations witli respect to tlic Asscts (including, but not limited to, all inaintcnancc and insuraxice obligations or rcquirements) wliich arise on or after the Effective Date.
3. Acceptance of Assig,nmcnt. Assignec liereby accepts tlie above assignment and transfcr of' tl'ic Assets. aiid licrcby assumcs, agrccs, and undcrtakcs to perform all of thc obligations, covenants, and agreemems or Assignor under the Sublease Agreement which arise on, or after, the Effective Date.
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4. Legal Transfer of Trailers. The parties licreto agree to cooperate with eacli ot)tar to transfer tlic five trailers owned by Assignor to Assignee, including, but not limited to complying with the applicable rules or regulations of' the State of California.
5. Termination of Construction Contract. Assignor shall no lcss than 10 days priorto thc Effcctive Datc, give notice of tcnnination under Section 12 of tlxe contract dated May 2022 with O&O Builders, Inc. f"or tlie construction ol' the Navigation Center ("Construction Contract"). To the fullest extent assignable, as of the Effective Date, witliout cost or liability to Assignec, AssiBnor liereby assigns to Assignee tlie indemnification riglits under Section 10 of theConstruction Contract, but reserving for Assignor any rights Assignor lias to indemnif'ication under tlic Construction Contract, and tlic warranties under Section 14 or the Construction Contract.
6. . Assignee accepts tlie Assets in their "AS IS, W-iERF,IS," and "WITH ALL FAULTS" condition as tlit'y exist as of the Effective Date, and Assignor sliall have no obligation to furnish, render or supply any work, )abor, materials, or otlier services to make any of the Assets ready or suitable for Assignee's occupancy. Assignor makes no representations or warranties to Assignee regarding any of tlie Assets, including the structural condition, and/or the condition of any mechanical, electrical, and otlier systems, thereof. Assignce acknowledges tliat Assignor has afforded Assigncc the oppoitunity for full and complete investigation, examination. and inspection of tlie Premises, and Assets in making aiid executing tliis Agreement, Assignee has relied solely on sucli investigations, examinations, and inspections as Assignec has chosen to make or }ias made and has not relied on any representation or warranty of Assignor with respect thereto,
7. Naining/Signage Rights. Some or all of tlie Improvements liave been funded through various donatioris from tliird parties, and in exchange for those donations Assignor agreed or committed to name sucli Improvements after such dcmors and to place signage upon sucli Jn'iprovements reflecting tliose nai'nes. Suclt agreements are attached as Exhibit C ("Naming Agreements"'). Assignee agrees to assume Assignor's obligations and commitments contained in the Naming Agreements.
. 8. City Consent to Assianmcnl and Release of Assignor. Tlic City licrcby approves oj, and consents to, tlie assignment of the Subleasc Agrcement and thc City liercby fully relcascs Assignor l'rom any furtlier obligations aiid/or liability under or relating to thc Sublease Agreement and the Premises arisinH on, or after tlie Eft-ective Data,
9. Efl'ective Date. This Agreement sliall be effective as of 12:00 PM (Noon) PST, on Septcmbcr 1, 2023 (thc "Effective Date"), unless Assignor advises Assignee and City that Assignor has rcccivcd an ob,jection from tl'ie Attorney General of tlie State otaCalifornia in response to the Attorney General Notice ("Attorney General Objection"). It' an Attornty General Objection is received, the Effective Date shall be continued until five (5) Business Days after any sucb objcction f'rom t}ic /'httorncy Gcncral is rcsolvcd, subicct to thc partics right to tctminatc thisAgreement under Section 1.
10. Hold Harmless and Indcmnification.
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a. Assignor sliall indcmni[y and hold Assignee hannless from and against any and all liability, loss, damage, expensc, and costs (including witliout limitation reasonable attorneys' fees and costs) of every nature arising out of or in conncction with the Sublease Agreement, the Premises, the Improveinents, and/or Personal Property arising before tlie Effectivc Date, except sucli loss or damage caused primarily by thc negligence or willful misconduct ofAssigncc. b. Assignee sliall indcnmify and lioM Assignor hartnless front and against any and all liability. loss, damage, cxpense, and costs (including witlioul limitation rcasonablc atlorxieys' fees and costs) of evcry nature arising out of or in connection with the Sublease Agrccn'icnt, the Premiscs, tlic lmprovemcnts, ai'id/or Personal Propcrty arising after the EtTective Date, except sucli loss or damagc caused primarily by tlie negligence or willful inisconduct of Assignor. c. WithoutlimitingAssignor'sliabilityunderSectionl0aandifAssignordoes not satisfy Assignor's obligation under Section 10a, City shall defend (with City's choice of counsel), indcnmify, and hold Assigncc harniless for any and all claims relating to the Subleasc Agreement or Premises that are existing or based partially or totally on facts existing on or before tbe Effective Date, except such claims caused primarily by the negligence or willfiil misconduct of Assignee. City's obligationto indcmnity and hold Assigneeliarmless shall include any and all claims related to the County Note and Deed of Trust. The parties intend this provision to be liberally interpreted to prevent Assignee from being liable or rcsponsible for any inchoate or ripened claims, known or unknown, that existed before the Effective Date. Notwitlistanding the forgoing, City's defense, indemnification, and hold harniless obligations herein shail not extei'id to any claim relating priinarily to premises liability, except for tliird party claims that ripened no later tlian 90 days af'ter the Effective Date tliat werc not caused primarily by the negligence or willful misconduct of Assignee.
11. . As of the Effective Date, Assignee shall havc in cffcct insurancc in satisfaction of Section 9.2 and 9.3 or tlie Sublease Agreemcnt,
12. Premises Operating Expenses. City agrees to provide funding to Assignor reJating to tlie continued operation of thc I)remises beginning on Augustl6, 2023, and ending on the carlicr o'?. (a) tlie date this Agreement is terminated, or (b) the Effective Date. Assignor sliall supply Citywith the following within thrcc (3) Business Days of tliis Agrcement's exccution: (a) a list of all payml) expcnscs relatcd to tlie Premises for the period of July 16 - July 31, 2023, (the ".luJy Payroll Charges") and (b) statements for all water, sewage, storm drain, solid wastc, watcr, and electricalcliargesrc!atedtotliePremisesfortlieperiodofJuly 16-July31,2023(the"JulyUtility Chstrges"). City shall provide funding equal to the July Payroll Cliarges and July Utility CliargestoAssignorwitliintwo(2)BusincssDayspriortotl'iccndol'caclipayrollpcriod. City'sagrccmcnt to provide f'inding to Assignor to be used for Assignor's payroll expense shall not create an employee/employer relationship between City and Assignor's employees. Assignor shall remain the employcr of tlie Assignor's employ('as and Assignor sliall solely detcmiine the time, place andmanner of any services provided by Assignor's employces.
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13. Miscellaiieous Provisions
a. Goveming Law. Tliis Agreement s]tall be governed by the laws of tlie State of-California,
b. . Tlic licadings uscd in this Agreement are for convenience only and sliall be disregarded in interpreting the substantive provisions of this Agrecment.
c. Counterparts. This Agrecinent may consist of and be executed in one or more counterparts. If so executed, all sucli counterparts shall collectiyely constitute one document, The exchange of coliies oftliis Agreement and of executed signaturepages by facsimile transmission or by electronic mail in "portable document formal" (".pdf"), or by a con'ibination of such means, will constitute effective execution and delivery of this written Certificate as to the parties and may be useci in lieu of an original Cer(ificate for all purposes. Without limitation, "elcctronic signature" sliall include DocuSign signature, faxed or cmailed versions of ari original signature or electronically scanned arid transmittcd versions of axi original signature.
d. Entire .%reement. This Agreement constitutes the entire agreement between the parties pertaining to the subjectmattercontained herein aiid supersedes all prior aiid contemporaneous negotiations, agreements, representations, and understandings of tlie parties. No modification or amendment of this Agreement shall be binding, unless executed in writing by the parties. c. Good Faith. Eacli of the parties hereto agrees tbat it sliall act in good f'aitli to cause all of the conditions precedent to its rcspectiye obligations herein to be satisfied,
f. Further Acts. Each party shall do and pcrform, or cause to bc done and performed, all such further acts and things. and shall execute and deliver all such other agreements, certificates, instniments, and documents, as the other party may rcasonably request in order to carry out the intent and accomplisli the purposcs of tliis Agreement axid tlie consummation of the transactioris contemplated hereby. g. Business Day. As used lierein, the term "Business Day" means any dayother tl'ian Saturday, Sunday and any day wliich is a lcgal holiday in tlic State ofCa)iforxiia. h. Incorporation of Recitals. The Recitals are liereby incorporated into andmade a part of this Agreement, as if f'iilly set fortli herein, (Signature page follows]
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IN WITNESS WHEREOF, the parties l'iave entercd into this Agreement as of the date firstwritten above.
ASSIGNEE: ST. MARY'S DINING ROOM,
a California not'iprofll public bcne['it corporation Petra Linden
Executive Director
ASSIGNOR: STOCKTON SHELTER FOR THE HOMELESS.
a California nonprofit public benefit corporation ' By:'=J)c44Name: J e,nn!kc l-ku
Tit'e:rvsi*tJ, 80tt,s4 ef hc+w5
[SI(,NATURES CONTINUE ON FOLLOW[NG PAGE]
ATTACHMENT A
APPROVED AS T FORM:
t,ori M. Asuncio
Crl t')/
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B)/ "/
CITY OF S'rOCKTON,
a munici corporation
arry lac a
$City cr
pr[ST: -f o
i -'; !71
ATTACHMENT A