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SUBLEASE
THIS SUBLEASE ("Sublease") is made as of ____________, 2021, by and between PLANETARY VENTURES, LLC, a Delaware limited liability company (hereinafter referred to as "Sublandlord"), and THE CITY OF SUNNYVALE, CALIFORNIA, a chartered municipal corporation (hereinafter referred to as "Subtenant"), with regard to the following facts.
Sublandlord and Subtenant are sometimes collectively referred to herein as the "Parties." R E C I T A L S :
A. Sublandlord is the Tenant under that certain Adaptive Reuse Lease (the "Master Lease"), with the NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (the "Landlord") dated as of October 30, 2014 concerning approximately 1001.1 acres of gross land area at Moffett Field, California ("MFA Premises"). Landlord and Sublandlord are also parties to that certain Assignment Agreement dated as of October 30, 2014 ("Assignment Agreement"), whereby Landlord assigned and Sublandlord assumed all of Landlord's rights under certain agreements, including but not limited to, that certain Agreement of Lease dated May 24, 2002 by and between Landlord and Subtenant ("Golf Course Lease").
B. Pursuant to the Golf Course Lease, Subtenant has occupied that certain 35.4 acre portion of Moffett Field as depicted on Exhibit A attached hereto and by this reference made a part hereof ("Subleased Premises").
C. The Subleased Premises are needed by Sublandlord to ensure the safe approach and take-off of aircraft from Moffett Field. One of the purposes of this Sublease is to ensure the proper control and maintenance of the Sublease Premises to ensure safe airfield operations.
D. Subtenant's right to occupy the Subleased Premises under the Golf Course Lease expires on May 24, 2022 ("Expiration Date").
E. In light of the Expiration Date, Subtenant desires to enter into a new direct sublease with Sublandlord for the Subleased Premises.
A G R E E M E N T :
In consideration of the mutual covenants contained herein and the consideration to be given herein, the sufficiency of which is hereby acknowledged, the Parties hereto agree as follows.
1. Recitals. The recitals set forth above are set forth herein as part of the Sublease.
2. Sublease. Sublandlord hereby subleases and demises to Subtenant and Subtenant hereby hires and takes from Sublandlord the Subleased Premises, subject to the express terms and conditions of this Sublease.
Attachment 1
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3. Term. The term of this Sublease (the " Sublease Term ") shall commence (the "Sublease Commencement Date") on the later of (i) the date of the last signature of this Sublease by Sublandlord and Subtenant, (ii) the date Landlord's written consent to this Sublease is obtained or (iii) May 24, 2022, and shall expire (" Sublease Termination Date ") on the earlier of (a) March 31, 2030 or (b) the termination of the Master Lease, unless sooner terminated as provided in this Sublease or the Master Lease. Subtenant acknowledges and agrees that in no event will its use materially interfere with or be wholly inconsistent with the United States government’s use of the Airfield (as defined in the Master Lease).
4. Rent.
4.1 Base Rent. During the Sublease Term, Subtenant shall pay to Sublandlord, in accordance with the terms of this Sublease, base rent ("Base Rent") for the Subleased Premises as follows:
Period during Sublease Term
Annual
Base Rent
Monthly Installment
of Base Rent
Sublease Commencement
Date through May 31, 2023
$66,438 $5,536.50
June 1, 2023 – Sublease
Termination Date
Commencing on June 1, 2023 and on
each and every June 1 thereafter during
the Sublease Term (each, an
"Adjustment Date"), the annual Base
Rent shall be increased (but never
decreased) by a percentage equal to the
greater of (a) the CPI Percentage
Increase (as defined below), and (b) one
percent (1%).
One-twelfth (1/12th) of
the result of the column
to the left*
The "CPI Percentage Increase" shall mean the percentage increase, if any, in the Consumer Price Index Urban Consumers (San Francisco-Oakland-San Jose, CA, area; Base 1982 84=100) ("Index"), as published by the United States Department of Labor, Bureau of Labor Statistics (the "Bureau"), for the calendar month that is four (4) months prior to the applicable Adjustment Date, as compared to the same calendar month for the immediately preceding year. Sublandlord shall provide Subtenant written notice of the CPI percentage increase and new annual rent amount no later than May 1 of each year. The annual Base Rent, as so increased, shall be payable on or before the applicable Adjustment Date, as set forth above. Should the Bureau discontinue the publication of the Index, or publish the same less frequently, or alter the same in some other manner, Sublandlord, in its discretion, shall adopt a substitute index or procedure which reasonably reflects and monitors consumer prices. Notwithstanding anything to the contrary contained herein, in no event shall the increase in annual Base Rent for the Sublease Term be more than three percent (3%) or less than one percent (1%).
The Base Rent for the first partial and full calendar month of the Sublease Term shall be paid at the time of Subtenant's execution of this Sublease. Any and all amounts payable by Subtenant to Attachment 1
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Sublandlord pursuant to the terms of this Sublease (other than Base Rent) are herein collectively referred to as "Additional Rent," and Base Rent and Additional Rent are herein collectively referred to as "Rent." Except as otherwise expressly provided herein, all Rent shall be payable by Subtenant without notice, demand, setoff or deduction, by a check for currency which, at the time of payment, is legal tender for private or public debts in the United States of America, to Sublandlord at the place set forth as Sublandlord's address for notices hereunder or, at Sublandlord's option, to such other party or at such other place as Sublandlord may from time to time designate in a written notice to Subtenant. If the Sublease Term begins or ends on a day other than the first or last day of a month or if any Rent is otherwise payable for a period which is shorter than one month, the Rent for such partial month shall be prorated on the basis of a thirty (30) day month.
During the Sublease Term, all costs, including but not limited to, any operating expenses, taxes, assessments, impositions, utilities, insurance, or services relating to the Subleased Premises or Subtenant's use thereof, shall be paid directly by Subtenant. Sublandlord shall have no obligation to incur any expense in relation to the Subleased Premises or Subtenant's use thereof.
5. Use. Subtenant covenants and agrees to use the Subleased Premises solely for maintenance and operation of a public golf course, in accordance with the provisions of the Master Lease and for no other purpose and otherwise in strict accordance with the terms and conditions of the Master Lease and this Sublease. Subtenant shall not erect, construct, or plant, or maintain structures or other obstructions of any kind on the Subleased Premises, including, but not limited to, trees, buildings, poles, embankments, ditches, gullies and water courses excepting the maintenance and improvement of the existing landscaping and golf course amen ities. Without exception, Subtenant shall not allow any object, either natural or artificial, to exceed a height that Sublandlord determines is unsafe for operations at the MFA Premises. Subtenant shall not install floodlights or any high intensity lighting on the Subleased Premises. Subtenant shall not interfere with or obstruct in any way the property operation and purpose of any signs, warning lights, approach lights or any other type of safety devices or items related to the MFA Premises.
Sublandlord reserves the right to remove or alter, in whole or in part, any structure or obstruction, artificial or natural, which is found to existing in violation of the terms and conditions of the Sublease. The cost of such removal shall be borne by Subtenant. Prior to exercising such right, Sublandlord shall give Subtenant thirty (30) days' prior written notice to correct or remove the violation. Sublandlord reserves the right of ingress and egress over and across the Subleased Premises for purpose of exercising such rights and inspecting the Subleased Premises.
6. Indemnification by Subtenant . In addition to the indemnification obligations set forth in Section 11.1(b) of the Master Lease that have been incorporated into this Sublease, Subtenant hereby agrees to protect, defend, indemnify and hold harmless Sublandlord and its members, partners, officers, directors, servants, employees, agents and independent contractors (collectively, "Sublandlord Parties"), from and against any and all liabilities, claims (including, without limitation, bodily injury and/or property damage) , expenses, losses and damages, including, without limitation, reasonable attorneys' fees and disbursements, which may at any time be asserted against Sublandlord or Sublandlord Parties by (a) Landlord for failure of Subtenant to perform any of the covenants, agreements, terms, provisions or conditions contained in the Master Lease which by reason of the provisions of this Sublease Subtenant is obligated to perform, or (b) any person by reason of the use and/or occupancy of the Subleased Premises by Subtenant or Attachment 1
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any of its members, officers, directors, servants, employees, agents, contractors, licensees, invitees and guests (collectively, "Subtenant Parties "). Subtenant further indemnifies and agrees to defend and hold harmless Sublandlord Parties from any losses or liabilities arising out of, involving, or in connection with, the use or occupancy of the Subleased Premises by Subtenant or Subtenant Parties, including any alleged act, failure to act or negligence of Subtenant Parties.
Subtenant shall be responsible for all costs incurred by Sublandlord for any damage to any Sublandlord property and equipment located on the Subleased Premises, including, but not limited to, signs, warning lights, approach lights and other types of safety devices, when such damage results from Subtenant's occupancy and use of the Subleased Premises under this Sublease. None of the Sublandlord Parties shall be liable for any damage or injury to Subtenant or Subtenant Parties or any damages to the property or any loss of personal property of Subtenant or Subtenant Parties occurring within the Subleased Premises and/or any part of the MFA Premises excluding claims arising from the active negligence or willful misconduct of such Sublandlord Parties. In addition, none of the Sublandlord Parties s hall be liable for any loss or damage to Subtenant’s vehicles, and/or t he vehicles of Subtenant Parties due to fire, theft, vandalism, rain, water, criminal or negligent acts, or any other cause while parked at the MFA Premises, excluding claims arising from the active negligence or willful misconduct of such Sublandlord Parties. Each party waives the right of subrogation against the other party along with any liability for loss, cost, damage or expense resulting from fire, explosion or any other casualty or occurrence which is incurred by either of the parties to this Sublease in connection with the Subleased Premises w here such party could have been covered (or is required under this Sublease to be covered) in whole or in part by insurance with respect to such loss, cost, damage or expense. The provisions of this Section 6 shall survive the expiration or earlier termination of the Master Lease and/or this Sublease.
7. Insurance, Surrender, No Alterations.
7.1 Insurance. Subtenant's personal property and vehicles are not insured by Sublandlord or Landlord, against loss or damage due to fire, theft, vandalism, rain, water, criminal or negligent acts, or any other cause. Subtenant specifically waives all claims relating to its personal and business property, and specifically releases Sublandlord from all such liability, except to the extent not covered by insurance and resulting from Sublandlord's active negligence or willful misconduct. Subtenant agrees to procure and m aintain at its sole cost and expense its own insurance policy (Personal Property Insurance) to protect Subtenant from any risk of loss, and is to include Sublandlord and Landlord as additional insureds. Additionally, Subtenant must obtain, and maintain in effect at its sole cost and expense through the term of this Sublease, a public liability insurance policy in the following minimum amounts: Bodily Injury or Death, $3,000,000 per person, $3,000,000 per accident; Property Damage, $3,000,000. Annually Sublandlord shall have the right to set new limits of liability for the required insurance coverage. It is expressly agreed, however, that maintenance of the required insurance shall effect no limitation of Subtenant hereunder. Each policy of insurance required to be maintained by Subtenant in this Section 7.1, shall name Subtenant, Sublandlord and Landlord as the insured, shall contain a provision for thirty (30) days written notice to Sublandlord and Landlord prior to the making of any material change in or cancellation of the policy, and shall otherwise be in such form for such periods of time and with such insurers as Sublandlord or Landlord shall from time to time require and approve.
Subtenant agrees to provide endorsed certificates of insurance, in which Sublandlord and Landlord are included as additional insureds, prior to this Sublease becoming effective, and upon renewal of that insurance. Subtenant’s self-insurance may be used to cover the above requirements of this Attachment 1
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Section 7.1, subject to Subtenant providing, at the request of Sublandlord or Landlord, evidence satisfactory to Sublandlord and Landlord that such self -insurance is adequate to cover the above requirements of this Section 7.1. If at any time Subtenant fails to maintain insurance required hereunder, Sublandlord may provide Subtenant with a notice of breach, and allow Subtenant five (5) days to cure said breach. Whenever (a) any loss, cost, damage or expense resulting from fire, explosion or any other casualty or occurrence is incurred by either of the parties to this Sublease in connection with the Subleased Premises, and (b) such party could have been covered (or is required under this Sublease to be covered) in whole or in part by insurance with respect to such loss, cost, damage or exp ense, then the party that could have been (or is required to be) insured hereby releases and waives, as to the other party, its employees, agents and contractors, any liability it may have on account of such loss, cost; damage or expense and waives any right of subrogation which might otherwise exist on account thereof.
7.2 Surrender. Upon termination of this Sublease , Subtenant shall: (a) give Sublandlord all key cards or opening devices to the Subleased Premises, including any common areas; (b) vacate the Subleased Premises and surrender it to Sublandlord empty of all persons: (c) vacate any/all parking and/or storage space(s), if any; (d) deliver all accommodations and the Subleased Premises to Sublandlord in the same condition as received by Subtenant (reasonable wear and tear and damage by casualty excepted); (e) give written notice to Sublandlord of Subtenant’s forwarding address, and (f) restore all alterations as required by the terms of this Sublease, and agree that all improvements installed by Subtenant , with or without Sublandlord’s consent, become the property of Sublandlord upon termination if Sublandlord does not otherwise require their removal. Any personal property of Subtenant which remains in the Subleased Premises after termination of this Sublease, may, at option of Sublandlord, be deemed to have been abandoned by Subtenant and may either be retained by Sublandlord as its own property or be disposed of without accountability in any such manner as Sublandlord may see fit. This paragraph shall constitute a waiver by Subtenant of any rights afforded by California Civil Code sections 1980 through 1991.
7.3 Alterations. Subtenant not make any alterations or install cabling, TT or telecom connections at the Subleased Premises, without the prior written consent of Sublandlord, which may be withheld in Sublandlord's sole and absolute discretion.
8. Master Lease. A redacted copy of the Master Lease is attached hereto as Exhibit B and by this reference made a part hereof. Subtenant and this Sublease shall be subject in all respects to the terms of, and the rights of Landlord under, the Master Lease. Capitalized terms used herein shall have the meanings given to those terms in the Master Lease, unless otherwise defined herein. Except as otherwise expressly provided herein, the covenants, agreements, terms, provisions and conditions of the Master Lease insofar as they relate to the Subleased Premises and insofar as they are not inconsistent with the terms of this Sublease are made a part of and incorporated into this Sublease as if recited herein in full, and the rights and obligations of Landlord and the Tenant under the Master Lease shall be deemed the rights and obligations of Sublandlord and Subtenant respectively hereunder and shall be binding upon and inure to the benefit of Sublandlord and Subtenant respectively. Accordingly, as applied to this Sublease, (i) the term "Landlord," as used in the Master Lease, shall be deemed to refer to Sublandlord hereunder, (ii) the term " Tenant," as used in the Master Lease, shall be deemed to refer to Subtenant hereunder, (iii) the term "Premises," as used in the Master Lease, shall be deemed to refer to the Attachment 1
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Subleased Premises hereunder, and (iv) the term "Lease," as used in the Master Lease, shall be deemed to refer to this Sublease. As between the P arties hereto only, in the event of a conflict between the terms of the Master Lease and the terms of this Sublease, the terms of this Sublease shall control. Subtenant covenants and warrants that it fully understands and agrees to be subject and subordinate to and bound by all of the covenants, agreements, terms, provisions and conditions of the Master Lease including any termination thereof, except as modified herein. Furthermore, Subtenant further covenants not to take any action or do or perform any act or fail to perform any act which would result in the failure or breach of any of the covenants, agreements, terms, provisions or conditions of the Master Lease on the part of the Tenant thereunder. Subtenant accepts the Subleased Premises subject to all easements and rights of way whether or not of record, including, without limitation, those described in the Golf Course Lease.
9. Landlord's Performance Under Master Lease. It is understood and agreed that, notwithstanding anything in this Sublease to the contrary, Sublandlord shall have no liability for any breach of any representations, warranties or statements regarding the condition of the Premises which were made by the Landlord under the Master Lease and Sublandlord shall have no obligation or responsibility to provide or perform any service, maintenance, utility, repair, alteration or other obligation which is the obligation of the Landlord to provide or perform pursuant to the terms of the Master Lease including, but not limited to, the obligation of the Landlord to make restorations or repairs after damage to the Premises or the Subleased Premises by fire or other casualty or after condemnation, the obligation of the Landlord to carry the insurance required to be carried by the Landlord under the Master Lease, the obligation of the Landlord to approve any alterations, additions, improvements or any other matter requiring the Landlord's approval hereunder or under the Master Lease, or any obligation of the Landlord with respect to any representations, warranties or statements regarding the condition of the Premises which were made by the Landlord under the Master Lease. Subtenant further agrees that each such obligation shall be provided or performed by the Landlord and not by Sublandlord; provided that, to the extent such obligations are performed by the Landlord, Subtenant shall be entitled to the benefits of such performance. Sublandlord shall in no event be liable to Subtenant nor shall Subtenant's obligations under this Sublease be impaired or reduced or the performance thereof excused because of any failure or delay on the Landlord's part in performing or observing any obligation of the Landlord under the Master Lease, and Subtenant shall continue to pay the Rent and all other charges provided for herein without any abatement, deduction or setoff whatsoever. Subtenant hereby acknowledges and agrees that Subtenant shall have no cause of action or other rights against the Landlord, either pursuant to this Sublease or under the Master Lease.
10. Variations from Master Lease. The following covenants, agreements, terms, provisions and conditions of the Master Lease are hereby modified or not incorporated herein:
10.1 Rent. Notwithstanding anything to the contrary set forth in Article 5 of the Master Lease, the Sublease Term of this Sublease, the Base Rent payable under this Sublease shall be as set forth in Section 4 above.
10.2 Brokers. Sublandlord and Subtenant represent and w arrant to each other that they have had no dealings with any real estate broker, agent or finder in connection with the negotiation and consummation of this Sublease and that they know of no other real estate broker, agent or finder who is entitled to a commission in connection with this Sublease except for Attachment 1
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Sublandlord's broker, CBRE, Inc. (Keith Zaky), which shall be compensated by Sublandlord pursuant to a separate agreement. Each Party agrees to indemnify, defend and hold harmless the other party from and against any and all claims, demands, losses, liabilities, lawsuits, judgments, costs and expenses (including, without limitation, reasonable attorneys' and professional fees and court costs) with respect to any leasing commission or equivalent compensation alleged to be owing on account of the indemnifying party's dealings with any real estate broker, agent or finder in connection with this Sublease. The provisions of this Section 10.2 shall survive the expiration or earlier termination of this Sublease.
10.3 Proceeds. Notwithstanding anything contained in the Master Lease to the contrary, as between Sublandlord and Subtenant only, all insurance proceeds or condemnation awards received by Sublandlord under the Master Lease shall be deemed to be the property of Sublandlord.
10.4 Landlord Consent. Whenever the provisions of the Master Lease which have been incorporated as provisions of this Sublease require the written consent of the Landlord, said provisions shall be construed to require the written consent of both the Landlord and Sublandlord.
10.5 Notices. Any notice which may or shall be given by either party hereunder shall be either delivered personally, delivered by nationally recognized overnight courier, or sent by certified mail, return receipt requested, addressed to the party for whom it is intended to each of the addresses set forth below such party's signature on this Sublease (which addresses, for purposes of incorporation of Article 18 of the Master Lease, shall be deemed to be the addresses set forth on the Basic Lease Information Pages), or to such other address as may have been designated in a notice given in accordance with the provisions of this Section 10.5. Any notice will be deemed given on the date of receipted delivery, or refusal to accept delivery, or when delivery is first attempted but cannot be made due to a change of address for which no notice was given.
10.6 Payments. All amounts payable hereunder by Subtenant shall be payable directly to Sublandlord.
10.7 Times. The time limits contained in the Master Lease for (i) giving of notices, making of demands, or performing of any act, condition or covenant on the part of Subtenant pursuant to the provisions of the Master Lease incorporated into this Sublease, or (ii) the exercise of any right, remedy or option by Sublandlord pursuant to the provisions of the Master Lease incorporated into this Sublease, are hereby changed for purposes of incorporation herein by shortening the same in each instance by two (2) business days, such that in each instance Subtenant shall have two (2) business days less time to observe or perform under this Sublease than Sublandlord has as the Tenant under the Master Lease.
10.8 AS-IS. Sublandlord shall deliver the Subleased Premises to Subtenant, and Subtenant shall accept the Subleased Premises from Landlord, in their current "AS -IS, WHERE- IS, WITH ALL FAULTS," condition, and Sublandlord shall not be obligated to provide or pay for any improvement work or services related to the improvement of the Subleased Premises.
Attachment 1
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Subtenant acknowledges and agrees that it is intimately familiar with the Subleased Premises having occupied them since 1966.
10.9 No Notice Needed. Notwithstanding anything to the contrary contained in the Master Lease, Subtenant's failure to pay any Rent or any other charge required to be paid under this Sublease, or any part thereof, as and when due shall constitute a default by Subtenant under this Sublease without any requirement on the part of Sublandlord to provide written notice of such failure.
10.10 Holdover. In no event shall Subtenant have the right to retain possession of the Subleased Premises or any part thereof beyond the expiration or earlier termination of this Sublease. Nothing contained in this Section 10.10 shall be construed as consent by Sublandlord to any holding over by Subtenant, and Sublandlord expressly reserves the right to require Subtenant to surrender possession of the Subleased Premises upon the expiration or earlier termination of this Sublease. In the event of any such holding over, in addition to any other liabilities to Sublandlord accruing therefrom, Subtenant shall protect, defend, indemnify and hold harmless Sublandlord from and against all loss, costs (including reasonable attorneys' fees) and liability resulting from such failure, including, without limiting the generality of the foregoing, the loss of Sublandlord's right to use and enjoy the Subleased Premises. Sublandlord specifically reserves its rights to demand and recover full compensation for any and all damages Sublandlord would suffer as a result of Subtenant's holdover. Upon the expiration or earlier termination of the Sublease Term, Subtenant will surrender possession of the Sublease Premises to Sublandlord, in the condition required herein. If Subtenant holds over after the e xpiration of the Sublease Term by lapse of time, with Landlord and Sublandlord's consent but without any written agreement providing otherwise, then Subtenant will be deemed to be a subtenant from month to month, at a monthly Base Rent equal to one hundred fifty percent (150%) of the monthly Base Rent for the final month of the Sublease Term (plus Additional Rent), and subject to all of the other provisions and conditions of this Sublease. Nothing in this provision will be construed to require Sublandlord to permit Subtenant to occupy the Sublease Premises after the end of the Sublease Term, or, if Sublandlord has permitted Subtenant to occupy the Sublease Premises for any period as a subtenant from month to month, to prevent Sublandlord from terminating such subtenancy at the end of any month. If Subtenant holds over after the expiration of the Sublease Term by lapse of time, without Landlord and Sublandlord's written consent, Subtenant will be liable to Sublandlord for damages for use of the Sublease Premises during the period of such holding over and will pay rent equal to two hundred percent (200%) of the monthly Base Rent for the final month of the Sublease Term (plus Additional Rent), plus any and all consequential damages suffered by Sublandlord (including, without limitation, damages payable by Sublandlord to Landlord by reason of Subtenant's holdover). In the event of such holding over, Subtenant will indemnify and hold Sublandlord harmless from and against any and all claims, suits, proceedings, losses, damages, liabilities, costs and expenses, including, without limitation, reasonable attorneys' fees and disbursements, asserted against or incurred by Sublandlord as a result of such unapproved holding over. Notwithstanding the foregoing, Sublandlor d will be entitled to all other remedies and damages provided under this Sublease or at law or in equity.
10.11 CASp. For purposes of Section 1938(a) of the California Civil Code, Sublandlord hereby discloses to Subt enant, and Subtenant hereby acknowledges, that the Subleased Premises have not undergone inspection by a Certified Access Specialist (CASp) to the Attachment 1
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actual knowledge of Sublandlord. In addition, the following notice is hereby provided as required by Section 1938(e) of the California Civil Code: "A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises." In furtherance of and in connection with such notice: (i) Subtenant, having read such notice and understanding Subtenant's right to request and obtain a CASp inspection and with advice of counsel, hereby elects not to obtain such CASp inspection and forever waives its rights to obtain a CASp inspection with respect to the Subleased Premises and/or the MFA Premises to the extent permitted by applicable laws now or hereafter in effect; and (ii) if the waiver set forth in clause (i) hereinabove is not enforceable pursuant to applicable laws now or hereafter in effect, then Sublandlord and Subtenant hereby agree as follows (which constitute the mutual agreement of the parties as to the matters described in the last sentence of the foregoing notice): (A) Subtenant shall have, subject to the prior written approval of the Landlord, the one -time right to request for and obtain a CASp inspection, which request must be made, if at all, in a written notice delivered by Subtenant to Sublandlord on or before the Sublease Commencement Date; (B) any CASp inspection timely requested by Subtenant and approved by the Landlord shall be conducted (1) between the hours of 9:00 a.m. and 5:00 p.m. on any business day, (2) only after ten (10) days' prior written notice to Sublandlord of the date of such CASp inspection, (3) in a professional manner by a CASp designated by Sublandlord and without any testing that would damage the Subleased Premises or the MFA Premises in any way, and (4) at Subtenant's sole cost and expense, including, without limitation, Subtenant's payment of the fee for such CASp inspection, the fee for any reports and/or certificates prepared by the CASp in connection with such CASp inspecti on (collectively, the "CASp Reports ") and all other costs and expenses in connection therewith; (C) Sublandlord (and the Landlord, at its request) shall be an express third party beneficiary of Subtenant's contract with the CASp, and any CASp Reports shall be addressed to both Sublandlord and Subtenant (and to the Landlord, at its request); (D) Subtenant shall deliver a copy of any CASp Reports to Sublandlord within two (2) business days after Subtenant's receipt thereof; (E) any information generated by the CASp inspection and/or contained in the CASp Reports shall not be disclosed by Subtenant to anyone other than (I) contractors, subcontractors and/or consultants of Subtenant, in each instance who have a need to know such information and who agree in writ ing not to further disclose such information, or (II) any governmental entity, agency or other person, in each instance to whom disclosure is required by law or by regulatory or judicial process; (F) Subtenant, at its sole cost and expense, shall be responsible for making any improvements, alterations, modifications and/or repairs to or within the Subleased Premises to correct violations of construction- related accessibility standards, including, without limitation, any violations disclosed by such CASp inspection; and (G) if such CASp inspection identifies any improvements, alterations, modifications and/or repairs necessary to correct violations of construction -related accessibility standards relating to those items of the MFA Premises located outside the Subleased Premises then, at the Landlord's election, either Subtenant or the Landlord shall perform such Attachment 1
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improvements, alterations, modifications and/or repairs as and to the extent required by applicable laws to correct such violations, in either instance at Subtenant's sole cost and expense.
10.12 Force Majeure. Subtenant acknowledges and agrees that as material consideration to Sublessor entering into this Sublease, and notwithstanding anything to the contrary in the Master Lease or this Sublease, Subtenant expressly acknowledges and knowingly and willingly agrees that Force Majeure events do not apply in any event to any of Subtenant's obligations under this Sublease, including, without limitation, Subtenant's obligations to pay any amounts due under this Sublease. This waiver includes, without limitation, any actual or alleged impacts on Subtenant or any other parties acting from or through Subtenant, from Pandemic Measures (as defined below). Subtenant expressly waives individually and in their entirety a ny so-called or so -intended "frustration of purpose," "impossibility of performance" or any other defenses of any kind that are intended to relieve or limit Subtenant's obligations and commitments under this Sublease. The term " Force Majeure Event " shall, notwithstanding anything to the contrary contained in this Sublease , mean any prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, acts of war, terrorist acts, inability to obtain services, labor, or materials or reasonable substitutes therefor, governmental actions, governmental laws, regulations or restrictions, civil commotions, fire or other casualty, actual or threatened public health emergency (including, without limitation, epidemic, pandemic, famine, disease, plague, quarantine, and other significant public health risk), governmental edicts, actions, declarations or quarantines by a governmental entity or health organization (including, without limitation, any shelter-in-place orders, stay at home orders or any restri ctions on travel related thereto that preclude Subtenant or Sublandlord or their agents, contractors or employees from accessing the Subleased Premises, as applicable, national or regional emergency [collectively, "Pandemic Measures"]), breaches in cybersecurity, and other causes beyond the reasonable control of the party obligated to perform, regardless of whether such other causes are (i) foreseeable or unforeseeable or (ii) related to the specifically enumerated events in this paragraph. __________________
Subtenant's Initials
10.13 Not Incorporated. The following provisions of the Master Lease shall not be incorporated into this Sublease: Basic Lease Information (other than notice addresses), Section
3.1(a), 3.6, 3.7, 3.8, 4.6, Article 10, Sections 19.4, 19.12.
11. Certificates. Subtenant shall at any time and from time to time as requested by Sublandlord upon not less than fourteen (14) days prior written notice, execute, acknowledge and deliver to Sublandlord, a statement in writing certifying that this Su blease is unmodified and in full force and effect (or if there have been modifications that the same is in full force and effect as modified and stating the modifications, if any), certifying the dates to which rent and any other charges have been paid and stating whether or not, to the knowledge of the person signing the certificate, the other party is then in default beyond any applicable grace period provided herein in performance of any of its obligations under this Sublease, and if so, specifying each such default of which the signer may have knowledge, it being intended that any such statement delivered pursuant hereto may be relied upon by others with whom the party requesting such certificate may be dealing.
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12. Assignment or Subletting. Subject further to all of the rights of the Landlord under the Master Lease and the restrictions contained in the Master Lease, Subtenant shall not be entitled to assign this Sublease or to sublet all or any portion of the Subleased Premises without the prior written consent of Sublandlord, which may be withheld by Sublandlord in its sole and absolute discretion.
13. Severability. If any term or provision of this Sublease or the application thereof to any person or circumstances shall, to any extent, be invalid and unenforceable, the remainder of this Sublease or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term or provision of this Sublease shall be valid and be enforced to the fullest extent permitted by law.
14. Entire Agreement; Waiver. This Sublease contains the entire agreement between the Parties hereto with respect to the subject matter hereof. This Sublease shall be binding upon and inure to the benefit of their respective heirs, representatives, successors and permitted assigns of the Parties hereto. Any agreement hereinafter made shall be ineffective to change, modify, waive, release, discharge, terminate or effect an abandonment hereof, in whole or in part, unless such agreement is in writing and signed by the Parties hereto. The failure of Sublandlord to insist, in any one or more instances, upon performance of any of the terms, covenants or conditions of this Sublease shall not be construed as a waiver or relinquishment of Sublandlord's right to require the future performance of any such terms, covenants, or conditions and the Subtenant's obligations in respect to such future performance shall continue in full force and effect.
15. Captions and Definitions. Captions to the Sections in this Sublease are included for convenience only and are not intended and shall not be deemed to modify or explain any of the terms of this Sublease.
16. Further Assurances. The Parties hereto agree that each of them, upon the request of the other Party, shall execute and deliver, in recordable form if necessary, such further documents, instruments or agreements and shall take such further action that may be necessary or appropriate to effectuate the purposes of this Sublease.
17. Attorneys' Fees. Notwithstanding anything to the contrary contained herein, should any claim, action, or proceeding (including, for the avoidance of doubt, any appeals of a claim, action, or proceeding) be commenced between the Parties hereto concerning any provision of this Sublease or the rights or duties of any person or entity in relation thereto, each party shall bear its own fees and costs (including, without limitation, attorneys' fees, accounting fees, expert wi tness fees, consulting fees, court costs, and all other costs) to the extent incurred in prosecuting or defending such claim, action, or proceeding against the other party. Nothing in this Section shall be construed to limit a P arty's obligation, as may be set forth elsewhere in this Sublease to indemnify another from any fees or costs (including, without limitation, attorneys' fees, accounting fees, expert witness fees, consulting fees, court costs, and all other costs), except to the extent incurred by the indemnified party in an action brought against the indemnifying party to enforce such indemnification provisions under this Sublease.
18. Governing Law; Venue . This Sublease shall be governed by and in all respects construed in accordance with the internal laws of the State of California. Venue for any litigation Attachment 1
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arising out of this Sublease shall be a court of competent jurisdiction in Santa Clara County, California, or if no court of competent jurisdiction exists there, then the next nearest court of competent jurisdiction.
19. Sublandlord Exculpation. Neither Sublandlord nor any of the Sublandlord Parties shall have any personal liability for any default by Sublandlord under this Sublease or arising in connection herewith or with the operation, management, leasing, repair, renovation, alteration or any other matter relating to the MFA Premises (or the Subleased Premises, and Subtenant hereby expressly waives and releases such personal liability on behalf of itself and all persons claiming by, through or under Subtenant. The terms of this Section 19 shall inure to the benefit of Sublandlord's and the Sublandlord Parties' present and future members, partners, beneficiaries, officers, directors, trustees, shareholders, agents and employees, and their respective partners, heirs, successors and assigns. Under no circumstances shall any present or future member of Sublandlord have any liability for the performance of Sublandlord's obligations under this Sublease. Notwithstanding any contrary provision herein, neither Sublandlord nor the Sublandlord Parties shall be liable under any circumstances for injury or damage to, or interference with, Subtenant's business, including but not limited to, loss of profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use, in each case, however occurring.
20. Counterparts. This Sublease may be executed in any number of counterparts, which may be delivered electronically, via facsimile or by other means. Each electronic or facsimile signature shall be deemed to be an original, and all such counterparts (including those delivered electronically or via facsimile), when taken together, shall be deemed to constitute one and the same instrument.
21. OFAC. Subtenant acknowledges that it is a U.S. Person (as defined below) and that it will comply with all applicable export and re-export control laws and regulations, including (i) the Export Administration Regulations ("EAR ") maintained by the U.S. Department of Commerce, (ii) trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control (" OFAC"), and (iii) the International Traffic in Arms Regulations ("ITAR") maintained by the U.S. Department of State. Subtenant understands that United Stat es regulations and executive orders, including those administered by OFAC, prohibit, among other things, engaging in transactions with (including providing services to) certain foreign countries, territories, organizations, entities, and individuals. Subtenant affirms that it and the subcontractors are not now, and shall not at any time during the term of this Sublease be, individuals, entities of any type, or governmental agencies with whom a U.S. Person may not transact business of the type contemplated by this Sublease under any United States laws, regulations, orders, or lists administered by OFAC or otherwise. A "U.S. Person " shall mean any United States citizen, permanent resident alien (i.e., green card holder), entity organized under the laws of the United States or its territories (including foreign branches), or entity having its principal place of business within the United States or any of its territories.
22. Compliance With Anti-Bribery Laws and Anti-Modern Slavery Laws.
22.1 Government Officials. I n performing its obligations under this Sublease, Subtenant shall comply with all applicable commercial and public anti-bribery and anti-corruption laws ("Anti-Bribery Laws"), including the U.S. Foreign Corrupt Practices Act of 1977 and the Attachment 1
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U.K. Bribery Ac t of 2010, which prohibit corrupt offers of anything of value, either directly or indirectly, to anyone, including Government Officials (defined below), to obtain or keep business or to secure any other improper commercial advantage. Furthermore, Subtenant shall not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform. "Government Official " means any government official, including government employees, candidates for public office, and employees of government - owned or government -controlled companies, public international organizations, and political parties.
22.2 Compliance. Subtenant represents that it (including any employees of Subtenant ): (i) has complied, and will continue to comply, with Anti-Bribery Laws in connection with its use and occupancy of the Subleased Premises under this Sublease; and (ii) has not otherwise taken, and will not take, any actions in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Government Official or to any other person for the purpose of influencing official action, to obtain or retain business, or to secure any other improper commercial advantage related to this Sublease.
22.3 Slavery. In performing its obligations under this Sublease, Subtenant shall (and ensure that its subcontractors and other participants in its supply chain shall) conduct its business and perform its obligations under this Sublease to ensure compliance with all applicable anti-human trafficking, forced labor, and modern slavery laws and rules including the U.K.
Modern Slavery Act 2015 ("Anti-Modern Slavery Laws"). "Modern Slavery" includes slavery, servitude, and forced or compulsory labor, and human trafficking. Subtenant shall not engage in any acts which would be considered to constitute Modern Slavery and will take reasonable steps to ensure that there is no Modern Slavery in its supply chain.
22.4 Termination. Sublandlord may terminate this Sublease immediately upon written notice to Subtenant if Sublandlord believes, in good faith, that Subtenant has violated or caused Sublandlord to violate any laws or rules identified in this Section 22, or that such a violation is reasonably likely to occur.
22.5 Exculpation. Subtenant will not be obligated under this Sublease to take any action or omit to take any action that it believes, in good faith, would cause it to be in violation of any laws of the country where Subtenant resides or performs services or any other applicable jurisdiction (including, without limitation, the U.S. Foreign Corrupt Practices Act or other U.S. laws).
22.6 No Liens. No liens. Subtenant shall promptly discharge or cause to be discharged any valid lien, right in rem, claim or demand of any kind, which at any time may arise or exist with respect to the Subleased Premises or any materials or equipment furnished therefor, or any part thereof, and if the same shall not be promptly discharged by the Subtenant, Sublandlord may discharge or cause same to be discharged, at the expense of Subtenant.
22.7 Consent of Landlord. The validity of this Sublease shall be subject to the Landlord's prior written consent hereto pursuant to the terms of the Master Lease. If Landlord's consent is not obtained, this Sublease shall be void and of no force and effect.
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SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be executed as of the day and year first above written.
"Sublandlord":
PLANETARY VENTURES, LLC,
a Delaware limited liability company
By: GEV Real Estate, Inc., a Delaware
corporation,
Its: Member
By: Google LLC , a Delaware limited
liability company,
Its: Sole member
______________________________
By: David Radcliffe,
Vice President of Real Estate and
Workplace Services
Addresses for notices to Sublandlord:
Planetary Ventures, LLC
c/o Google LLC
1600 Amphitheatre Parkway
Mountain View, California 94043
Attention: Lease Administration
with a copy to:
Planetary Ventures, LLC
c/o Google LLC
1600 Amphitheatre Parkway
Mountain View, California 94043
Attention: Legal Department / Real Estate
"Subtenant":
THE CITY OF SUNNYVALE,
CALIFORNIA
By: _______________________________
Name: Kent Steffens
Title: City Manager
APPROVED AS TO FORM:
___________________________________
Melissa Tronquet
Assistant City Attorney
Addresses for notices to Subtenant:
City of Sunnyvale
Department of Public Works
456 West Olive Avenue,
Sunnyvale CA 94086
Attention: City Property Administrator
with a copy to:
City of Sunnyvale
City Attorney’s Office
456 West Olive Avenue,
Sunnyvale CA 94086
Attention: City Attorney
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MASTER LANDLORD CONSENT
The undersigned, as the "Landlord" under the ADAPTIVE REUSE LEASE dated as of October 30, 2014 (the "Lease"), by and between the NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (the "Landlord") and PLANETARY VENTURES, LLC, a Delaware limited liability company (the "Tenant"), hereby consents to the foregoing Sublease dated as of ________________, 2021 (the "Sublease"), by and between the Tenant, as Sublandlord, and THE CITY OF SUNNYVALE, CALIFORNIA.
"LANDLORD":
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION,
an Agency of the United States
By:
Name:
Title
By:
Name:
Title:
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EXHIBIT A
-1-
EXHIBIT A
SUBLEASED PREMISES
All that certain portion of Moffett Field, containing 35.4 acres, more or less, depicted on Exhibit on Exhibit A-1 below, subject to and reserving therefrom the right of Sublandlord to install, operate, maintain, repair and replace on, over and under the land, signs, warning lights, approach lights and other types of safety devices which is considers necessary for the safety and protection of aircraft operations, and to maintain, remove or require the removal of trees, landscaping or golf course amenities as necessary for the safe operation of aircraft, including the right of ingress and egress over and across said Premises for the purpose of exercising all the said above rights.
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EXHIBIT B
MASTER LEASE
[ATTACHED]
Attachment 1