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ASSIGNMENT OF
AGREEMENT OF PURCHASE AND SALE & EXCLUSIVE NEGOTIATING AGREEMENT This Assignment of Agreement of Purchase and Sale (the “Agreement”) is made as of the [___] day of [_______], 2023 by and between MidPen Housing Corporation, a California nonprofit corporation (“Assignor” or “Developer”) and the City of Sunnyvale, a California chartered municipal corporation (the “Assignee or City”), and is made with reference to the following facts and objectives:
RECITALS
A. Wells Fargo Bank, N.A. (“Seller”) and Assignor have previously entered into that certain Agreement of Purchase and Sale dated [_________], 2023, (the “PSA”), pursuant to which Seller agreed to sell, and Assignor agreed to purchase, the Property as defined in the PSA including, without limitation, the real property located at 295 S. Mathilda Avenue, Sunnyvale, California. (“Property”) B. Assignor desires to assign all of its interest in the PSA to Assignee, and Assign ee desires to assume all obligations of Assignor under the PSA, as hereinafter provided.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS, PROMISES,
REPRESENTATITIONS AND AGREEMENTS SET FORTH HEREIN, AND FOR OTHER GOOD AND
VALUABLE CONSIDERATION, TH E SUFFICIENCY AND EXCHANGE OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES, INTENDING TO BE LEGALLY BOUND, AGREE AS FOLLOWS:
1. Definitions. Capitalized terms not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the PSA.
2. Acknowledgement. Assignor and Assignee acknowledge and confirm that both have read the PSA and understand all rights, title, interest, obligations, responsibilities, and duties in and pursuant to the PSA.
3. Cooperation during Due Diligence. During the Inspection Period as set forth in the PSA, the Assignor and Assignee shall cooperate in the review of due diligence materials and information related to the Property. Assignor agrees to procure and provide the following to the Assignee during the Inspection Period:
• Phase 1 to be provided by Assignor’s environmental consultant; • Limited Phase 2 if required based on Phase 1, to be performed by Assignor’s environmental consultant and its contractors;
• Title Report provided by Seller; and
• Any and all documents required to be provided by the Seller pursuant to the PSA.
Prior to the Inspection Period Deadline as set forth in the PSA the Assignor and Assignee will each provide the other party with written notice of each parties intent to proceed with t he acquisition of the Property in accordance with the PSA. If one of the parties of this Agreement fails to provide written notice to the other party at least three (3) business days prior to the Inspection Period Deadline of its intent to proceed with the acquisition of the Property, such failure will be deemed notice that the party does not intend to proceed with the acquisition of the Property. Assignee and Assignor agree that both parties’ affirmative written notice of intent to proceed with acquisition of the Property is required to for the parties to proceed with this Assignment and the acquisition of the Property. Should the Assignee elect not to proceed with this Assignment, or fail to give notice of their to intent to proceed as set forth in thi s section, Assignee Attachment 3
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shall retain the right, but not the obligation, to proceed with the acquisition of the Property pursuant with the PSA.
4. Assignment and Assumption. Assignor hereby assigns all of its right, title and interest in and to the PSA to Assignee, and Assignee hereby assumes all of Assignor’s obligations and rights under the PSA, which assignment will be effective upon Assignor providing written notice to the Seller pursuant to Section 7.2 of the PSA that the Property is suitable for Assignor’s intended use of the Property. Assignor shall also assign to the Assignee the Phase 1 and the Phase 2 prepared by Assignor and shall obtain from the preparers of such reports a reliance certificate allowing the City to rely upon those reports.
5. The parties agree that all references in the PSA to Assignor will, as of the effective date of the Assignment, refer to Assignee.
6. Payment. As part of its execution of the PSA with Seller, Assignor deposited into escrow initial earnest funds (“Earnest Money”) in the sum of $500,000. Upon close of escrow in the Property, Assignee shall deposit into escrow the full Purchase Price for the Property in accordance with the PSA and instruct the escrow officer to return to the Assignor the Earnest Money deposited by Assignor . Reimbursement of the Earnest Money is a material consideration for Assignor entering into this Agreement.
7. Commercial Lease. As part of the material consideration for both parties entering into this Agreement, Assignee and Assignor agree that at the close of escrow of the Property, transferring the Property from Seller to Assignee, that the parties shall enter into a short term commercial lease of the Property whereby the City will lease the Property to the Assignor in substantially similar form to the commercial lease attached as Exhibit A to this Agreement and subject to the following agreed to terms: 7.1 Initial Term of the lease shall be for two years. Developer will have an option to extend the term of the Lease for three additional one year terms.
7.2 Rent during the term of the Commercial Lease shall be a nominal amount.
7.3 The Commercial Lease shall terminate upon execution of a Ground Lease for the Property between City and Developer.
8. Exclusive Negotiating Agreement. As part of the material consideration for Assignor entering into this Agreement, Assignee and Assignor agree to the following:.
8.1 Good Faith Negotiations. The Assignor and City shall negotiate diligently and in good faith, during a Negotiating Period, set forth in section 8.2 the terms of a Development and Disposition Agreement (“DDA”) and Ground Lease for the development of the Property by Developer. During the Negotiating Period, the parties shall use good faith efforts to accomplish the respective tasks necessary to facilitate the negotiation of a mutually satisfactory DDA and Ground Lease. The parties acknowledge that the City is entering into this Agreement on the condition that the development of the Property will comply with Government Code Section 37364 in that at least 80% of the Property will be developed for housing 40% of the housing units developed on the Property will be affordable to households with incomes at or below 60% of the area median income for Sunnyvale and of those affordable units at least half will be affordable to very low income households. The parties also acknowledge to provide no less than 25% of total housing units for homeless individuals/households within the proposed development, specifics of which will be set forth in the DDA.
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8.2 Negotiating Period. The Negotiating Period (“Negotiating Period”) shall commence upon acquisition of the Property by the City and continue until the earlier of eighteen (18) months from the acquisition of the Property by the City or execution of the DDA by both parties. The Negotiating Period may be extended for two additional six (6) month periods by the City Manager at written request of the Developer if the City Manager determines that the parties are making progress toward the negotiation of the DDA and the Ground Lease. The parties agree to negotiate in good faith and conduct due diligence activities during the Negotiation Period and any extension thereof. As used in this Agreement, "Negotiating Period" will include any such extension.
8.3 Conclusion or Extension of ENA. If the City has not signed the DDA by the expiration f the Negotiation Period (as the Negotiation Period may be extended by operation of the preceding paragraph), then this Agreement shall automatically terminate and neither Party shall have any further rights or obligations under this Agreement, unless the City, in its sole discretion, agrees in writing to an extension. If a DDA is executed by the Parties prior to the expiration of the Negotiating Period or mutually agreed upon extension of the Negotiating Period, upon the execution of the DDA, the exclusive negotiation provisions within this Agreement shall terminate, and all rights and obligations of Parties shall be as set forth in the executed DDA.
8.4 Exclusive Negotiations. During the Negotiating Period, the City shall not negotiate with any entity, other than the Developer, regarding the sale, lease or development of the Property or any portion thereof, or solicit or entertain bids or proposals to do so. This provision shall not preclude the City from providing copies of documents or information related to the Site in response to a request under the California Public Records Act or other applicable statutory provisions.
8.5 Negotiating Period Tasks. During the Negotiating Period, the Developer shall submit the following documents and information to the City within the time frames set forth below:
(a) Plans for Community Engagement. Within three hundred and sixty-five (365) days of the commencement of the Negotiating Period, the Developer shall submit to the City preliminary plans for community outreach and engagement (“Preliminary Outreach and Engagement Plans”). The City shall review and comment on the Preliminary Outreach and Engagement Plans in a timely manner. The Parties agree that the Preliminary Outreach and Engagement Plans may be modified during the Negotiating Period. (b) Preliminary Application Submittal. Within three hundred and sixty-five (365) days of the commencement of the Negotiating Period, the Developer shall submit to the City, for its review a preliminary planning application for the Property that includes a proposed development phasing schedule and general uses for the Property, and a preliminary site plan identifying the general location of the proposed buildings and landscaping, points of ingress and egress and the general location of any other proposed improvements to be constructed as part of the Project.
(c) Financing and Costs of Project. Within three hundred and sixty-five (365) days of the commencement of the Negotiating Period, the Developer shall submit to the City, for its review, a preliminary financial analysis of the development and operation of the development on the Property. The financial analysis submitted by the Developer shall be refined by the Parties during the Negotiating Period and as otherwise provided in the DDA.
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9. Limitation on Effectiveness of Agreement. This Agreement does not impose a binding obligation on City to convey any portion of, or interest in, the Property to Developer, nor does it obligate City to provide any City assistance or to grant any approvals or authorizations required for the development of the Property. This Agreement does not obligate eith er the City or the Developer to enter into a DDA or Ground lease or to enter into any other agreement. Any DDA and Ground Lease resulting from negotiations pursuant to this Agreement shall become effective only if and after such DDA and Ground Lease have b een considered and approved by the City Council and executed by duly authorized representatives of the City and the Developer. No agreement drafts, actions, deliverables or communications arising from the performance of this Agreement shall impose any leg ally binding obligation on either Party to enter into a DDA and Ground Lease, nor shall any such documents, actions or communications constitute any oral or implied agreement by either Party to enter into any other agreement. The Parties acknowledge that the final form of any agreement governing the development of the Property may contain matters not covered in this Agreement, and the provisions herein are not intended to exclude or preclude any other issues that may arise during negotiations.
10. Compliance with CEQA, as applicable Without limiting the generality of Section 9 above, Developer expressly acknowledges that any agreement resulting from the negotiations contemplated hereby shall become effective only if the agreement is approved by the City Council following compliance with all applicable notice and hearing requirements and compliance with all other requirements of law, including without limitation, the requirements of the California Environmental Quality Act (“CEQA”) , as applicable. The Part ies acknowledge that development of the Property may require the grant of discretionary land use entitlements subject to the City's normal review and approval process, that the development of the Property must comply with CEQA, as applicable, and that nothing in this Agreement is intended to or shall be interpreted as the grant of any approvals for development of the Property, or the modification or waiver of any City procedures or requirements. Without limiting the foregoing, the Parties acknowledge that the City retains discretion to (i) modify the development proposed by the Developer as City may, in its discretion, determine to be necessary to comply with CEQA, (ii) select other feasible alternatives and/or impose mitigation measures to avoid or minimiz e significant environmental impacts; (iii) balance the benefits of the development of the Property against any significant environmental impacts prior to taking final action, if such impacts cannot otherwise be avoided; and/or (iv) determine not to proceed with the development of the Property.
11. Defaults and Remedies.
a. Default. Failure by any Party to (i) submit required documents within the time frames required or (ii) to negotiate in good faith as provided in this Agreement shall constitute events of defau lt hereunder. The non-defaulting Party shall give written notice of a default to the defaulting Party, specifying the nature of the default and the required action to cure the default. If a default remains uncured fifteen (15) business days after receipt by the defaulting Party of such notice, the non - defaulting Party may exercise the remedies set forth in Section 11(b) below. b. Remedies. In the event of an uncured default by the City, the Developer's only remedy is to terminate this Agreement. In the event of an uncured default by the Developer, the City's sole remedy shall be to terminate this Agreement and reimburse Developer for all predevelopment expenses incurred prior to termination, excluding Developer staff time . Following such termination, no Party shall have any right, remedy or obligation under this Agreement, except that any indemnification obligations shall survive such termination.
12. Successors and Assigns; Governing Law . This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. This Agreement shall be governed under the Attachment 3
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laws of the State of California, excluding its conflicts of laws principles. The Developer may not transfer or assign any or all of its rights or obligations hereunder except with the prior written consent of the City, which consent shall be granted or withheld in the City's sole discretion, and any such attempted transfer or assignment without the prior written consent of the City shall be void.
Notwithstanding the foregoing, the Developer may assign its rights and obligations under this Agreement to a limited partnership (an "LP") or limited liability company (an "LLC") under the control of the Developer provided that the Developer has submitted the LP's or LLC's organizational documents (including but not limited to, the LP's initial limited partnership agreement or LLC's operating agreement) to the City and the City has confirmed that the Developer controls the LP or LLC, as determined in the City's reasonable discretion.
13. Severability. If any provision of this Ag reement or the application thereof to any entity, person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other entities, persons or circumstances shall not be affected ther eby, and shall be enforced to the greatest extent permitted by law.
14. Notices. Unless specified otherwise in this Agreement, all notices provided for in this Agreement shall be in writing (which may include email) and served at the following addresses until such time as written notice of a change of address is given to the other party:
To Assignor/Developer:
Mollie Naber, Associate Director
303 Vintage Park Drive, Suite 250, Foster City, California 94404 [email protected]
Lance Smith, VP and Corporate Counsel
303 Vintage Park Drive, Suite 250, Foster City, California 94404 [email protected]
To Assignee/City:
Community Development Director
City of Sunnyvale
456 W Olive Ave
Sunnyvale, CA 94088
With a copy to:
City Attorney
City of Sunnyvale
456 W Olive Ave
Sunnyvale, CA 94088
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Service will be deemed to have been given and received as follows: certified or first-class mail notices will be presumed to be received three (3) business days after deposited in the United States Mail; notices sent by email will be presumed received on the date sent if transmitted during normal business hours and on the next business day if transmitted after normal business hours; and notices sent by overnight courier service will be presumed to be received one (1) calendar day after delivery to the overnight courier service.
15. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together s hall constitute one and the same instrument. The parties may execute this Agreement by means of "DocuSign" or similar electronic signature method complying with the U.S. federal ESIGN Act of 2000, California's Uniform Electronic Transactions Act (Cal. Civ.
Code § 1633.1, et seq.) or other applicable Law (“E-Sign Laws”), and counterparts may be delivered via electronic mail (including portable document format (pdf), "DocuSign" or any electronic signature and delivery method or other transmission method complying with applicable E-Sign Laws). Any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date and year first above written.
Assignor: Assignee:
MidPen Housing Corporation City of Sunnyvale
By: ____________________________ By: _____________________________ Title: ____________________________ Kent Steffens, City Manager Approved as to Form
By: _____________________________
Title: John A. Nagel, City Attorney
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EXHIBIT A
LEASE OF CITY REAL PROPERTY
AT 295 S. MATHILDA TO
MIDPEN HOUSING CORPORATION
This lease of real property (“Lease”) at 295 S. Mathilda dated ______, 2023, is by and between the City of Sunnyvale, a chartered municipal corporation of the State of California, hereafter called “Lessor,” and MidPen Housing Corporation, a California nonprofit public benefit corporation, hereafter called “Lessee”, collectively referred to as “the Parties”.
RECITALS
A. WHEREAS, lessor is the owner in fee of all that certain property described in Exhibit “A”, attached hereto and incorporated herein by this reference, along with all buildings and improvements located thereon, hereafter referred to as “Property”; and B. WHEREAS, the City and Developer entered into that certain “Assignment of Purchase and Sale & Exclusive Negotiation Agreement” dated _________, 2023 (the “Agreement”); and C. WHEREAS, the Agreement grants the Developer an exclusive negotiation period during which the City and the Developer will in good faith seek to negotiate the terms of a Disposition and Development Agreement and Ground Lease pursuant to which the Developer would lease the Property; and
D. WHEREAS, Lessee has requested a short-term lease for the Property during the exclusive negotiation period and predevelopment period for any development to be constructed on the Property by the Developer.
NOW, THEREFORE , for and in consideration of the mutual promises, covenants, and conditions herein contained, the Parties agree as follows:
1. Lease of Property. Lessor hereby leases to Lessee the property, including the building and improvements located at 295 S. Mathilda Avenue in the City of Sunnyvale, California, particularly described in Exhibit “A”.
2. Term of Lease. The term of this Lease shall be for two (2) years and shall commence on ____________, 2023 and shall expire on the earlier of (i) termination of the exclusive negotiation period pursuant to the Agreement if the exclusive negotiation period expires without the City and the Developer having entered into a Disposition and Development Agreement; (ii) the date the City and the Developer enter into a Ground Lease for the Property or (iii) _____________, 2025. At the end of the term the Parties may mutually agre e to extend the term by no greater than three additional one year terms. The Parties may also mutually agree to an early termination in accordance with Section 8 below.
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3. Condition of Property. Lessee is fully aware of the existing condition of the Property and accepts the Property in said condition.
4. Rent. Rent shall be $1,000 per month paid on or before the 1st of each and every month of the Term and any extensions herein. In the event this rent amount is not received by Lessor by the 1st of the month, a late fee of $50.00 shall be assessed, except that the late fee shall not be assessed until the 10 th of the month for the first month’s rent only.
5. Use of Property. The Property shall be used for general office purposes and no demolition, alterations or construction shall occur during the term unless otherwise authorized in accordance with Section 17 below. Additionally, Lessee is required to maintain the Property in accordance with Section 14 below and keep the Property secured at all times.
6. Assignment and Sublease. Lessee shall not assign this Lease or any interest therein, nor let or sublet the whole or any part of the said Property without the express written consent of Lessor which Lessor may grant in its sole discretion, except Lessee shall be permitted to assign this Agreement without the express written consent of Lessor to any affiliated entity of Lessee, provided Lessee provides written notice of such assignment to Lessor at least thirty (30) days prior to the effective date of such assignment and a fully executed copy of any assignment documents.
7. Expiration. Upon the expiration of the term of this Lease, or of any mutually agreed upon extension, Lessee shall quit and surrender the Property in as good state and condition, reasonable wear and tear excepted, as its condition at the commencement of said term.
8. Omitted
9. Compliance with All Laws. Lessee, at its sole cost, shall comply with all applicable lawful requirements, policies, statutes and ordinances with respect to the use of the Property.
10. Utilities. Lessee shall pay all charges for utilities and other services upon the Property, including but not limited to gas, electricity, sewer, water and garbage charges.
11. Indemnification and Hold Harmless . Lessee shall defend, indemnify and hold harmless Lessor, its officers, agents, and employees against any liability, claim or loss for damage to any property or injury to or death of any person or persons arising from or connected to the Property during the term of this Lease, except to the extent such liability claim or loss is attributable to the gross negligence or willful misconduct of Lessor, its officers, agents, or employees.
12. Hazardous Materials.
A. Hazardous materials are those substances listed in Division 4, Chapter 30, Article 9 of Title 22, California Code of Regulations, or those which meet the toxicity, reactivity, corrosiveness or flammability criteria of Article 11 of the above Code, as well as any other substance which poses a hazard to health or environment.
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B. Except as otherwise permitted in the Lease, Lessee shall not use, create, store or allow any such substances on the Property. Fuel stored in a motor vehicle for the exclus ive use in such vehicle is excepted.
C. In no case shall Lessee cause or allow the deposit or disposal of any such substance on the Property.
D. However, household products necessary for routine cleaning and maintenance of the property may be kept on the Property in quantities reasonable for current needs.
E. Lessor, or its agents or contractors, shall at all times have the right, upon reasonable notice, to go upon and inspect the Property and the operations conducted thereon to assure compliance with the requirements herein stated. This inspection may include taking samples of substances and materials present for testing, and/or testing soils or underground tanks on the Property.
F. Breach of any of these covenants, terms and conditions shall give Lessor authority to immediately terminate this Lease. It is the intent of the parties hereto that the Lessee shall be responsible for and bear the entire cost of removal and disposal of hazardous materials or waste introduced to the Property during the ter m of this Lease. The Lessee shall also be responsible for any cleanup and decontamination on or off the Property necessitated by such materials or waste.
G. Lessee shall further indemnify, defend, and hold Lessor and its officers or employees, harmless from any and all responsibility, loss, damage, liability and expenses (including reasonable attorneys’ fees) resulting from the presence or use of hazardous materials on the Property during the Lessee's periods of use and possession.
13. CASp Compliance. Pursuant to California Civil Code section 1938, Lessor hereby notifies Lessee that as of the date of this Lease, the building located on the Property has not undergone inspection by a “Certified Access Specialist” (“CASp”) to determine whether the building meets all applicable construction-related accessibility standards under California Civil Code section 55.53. Lessor hereby discloses pursuant to California Civil Code section 1938 as follows: “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 owne r or lessor may not prohibit the Lessee from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the Lessee, if requested by the Lessee. The parties shall mutually agree on the arrangements for the time and man ner 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.” Lessor and Lessee hereby acknowledge and a gree that in the event that Lessee elects to perform a CASp inspection of the building hereunder (the “Inspection”), such Inspection shall be (a) performed at Lessee’s sole cost and expense, (b) limited to the building and (c) performed by a CASp who has been approved or designated by Lessor prior to the Inspection. Any Inspection must be performed at a time reasonably approved by Lessor. Lessor reserves the right to be present during the Inspection. Lessee agrees to: (i) promptly provide to Lessor a cop y of the report or certification prepared by the CASp inspector upon request (the “Report”). Lessee shall be solely responsible for the cost of modifications or improvements required to comply with all applicable accessibility standards under state or fede ral Regulations, as well as any other repairs, upgrades, Attachment 3
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improvements, modifications or alterations required by the Report or that may be otherwise required to comply with applicable Regulations or accessibility requirements (the “ Access Improvements”) to the building necessary to correct any such violations of construction -related accessibility standards identified by such Inspection as required by Regulations, which Access Improvements may, at Lessor’s option, be performed in whole or in part by Lessor at Lessee’s expense, payable as Additional Rent within ten (10) days following Lessor’s demand.
14. Maintenance and Repairs. Except as provided herein, Lessee at its cost shall maintain and repair all Lessee's personal property. Lessee shall be responsible for maintenance and repair of the improvements located on the Property including but not limited to the building’s HVAC, plumbing, electrical, lighting, interior walls, ceilings, floors, windows, doors, plate glass and skylights. In addition, Lessee shall be responsible for securing that Property to protect the Property from trespassers, which may include installing security fencing around the perimeter of the Property and taking other appropriate security measures as needed to secure the Property. Lessor shall not maintain any part of the property.
15. Taxes.
15.1. Lessee shall pay before delinquency all taxes, assessments, license fees, and other charges that are levied and assessed against the Property, including but not limited to possessory interest taxes and taxes on any of Lessee's personal property installed or loca ted in or on the Property, that become payable during the term of this Lease. On demand by Lessor, Lessee shall furnish Lessor with satisfactory evidence of these payments.
16. Insurance. As a condition precedent to this Lease, Lessee shall provide evidence of insurance in accordance with the insurance requirements shown in Exhibit “B” and incorporated herein by reference.
Lessee shall maintain these insurance requirements throughout the lease term and name Lessor as additional insured on its insurance policies.
17. Alterations, Additions and Improvements.
17.1. Lessee shall not undertake any demolition, building, construction, reconstruction or development on the Property without submitting to Lessor a plan and receiving Lessor's approval thereof. Any such approved alterations, additions or improvements shall be made solely at the cost of Lessee and shall not be made until Lessee has obtained any and all necessary permits and approvals.
17.2 Lessee shall keep the Property free and clear of any and all liens or encumbrances.
Lessor shall have the right to post and keep posted in a conspicuous place on the Property a notice of non-responsibility during the period of time d uring which any alterations, additions or improvements may be made by Lessee.
18. Waiver. No waiver by either party at any time of any of the terms, conditions or covenants of this Agreement shall be deemed as a waiver at any time thereafter of the same or of any other term, condition or covenant herein contained, nor of the strict and prompt performance thereof. No delay, failure or omission of Lessor to reenter the Property or to exercise any right, power or privilege or option arising from any breach sh all impair any such rights, power, privilege or option or be construed as a waiver of such breach or a relinquishment of any right or acquiescence therein.
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19. Default. Should Lessee default at any time in the payment of any installment of rent, or of any other charges when the same become due, or should Lessee default in the performance of any covenant or agreement or condition hereunder, including the use of the Property, and fail to cure the default after thirty (30) days' written notice of such default by Lessor to Lessee, Lessor shall have the right to terminate this Lease forthwith. In the event of such termination, Lessee shall quit and surrender the Property to Lessor and Lessor shall have the right of immediate reentry. The right to terminate this Lease shall be in addition to the other rights or remedies of Lessor in the event of a default
20. Binding on Successors. The covenants and conditions herein contained shall, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and assigns of all the parties hereto.
21. Severability. If any section, paragraph, sentenc e, clause, phrase, or portion of this Lease is invalid or shal1 be held to be invalid, such invalidity shall not affect the validity of the balance of the Lease.
22. Notice. Any notices herein provided to be given, or which may be given by either party to the other, shall be deemed to have been fully given when made in writing and either personally delivered to the other party or deposited in the United States mail, postage prepaid and addressed as follows:
To Lessee:
MidPen Housing Corporation
Mollie Naber, Associate Director
303 Vintage Park Drive, Suite 250, Foster City, California 94404
[email protected]
with a copy to:
Lance Smith, VP and Corporate Counsel
303 Vintage Park Drive, Suite 250, Foster City, California 94404
[email protected]
To Lessor: City of Sunnyvale – Dept. of Public Works
City Property Administrator
456 West Olive Avenue
P.O. Box 3707
Sunnyvale, California 94088-3707
(408) 730-7527
[email protected]
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with a copy to:
City of Sunnyvale – Community Development
Housing Officer
456 West Olive Avenue
P.O. Box 3707
Sunnyvale, California 94088-3707
(408) 730-7250
[email protected]
23. Destruction of Property . In the event the Property is totally or partially destroyed, rendering the Property totally or partially inaccessible or unusable, either party may terminate this Lease by giving written notice of such termination to the other party. In the event of such destruction, Lessor shall be entitled to any and all proceeds from fire or other haz ard insurance, which is based on the replacement value of the Property
24. Taking by Eminent Domain . If, during the term of this Lease there is any taking of all or any part of the Property or any interest in this Lease by condemnation, the rights and obli gations of the parties shall be determined pursuant to this paragraph. If the Property is totally taken by condemnation, this Lease shall terminate on the date of taking. If any portion of the Property is taken by condemnation, the lease terminates as to the part taken and remains in effect as to the remainder. The terms of this Lease shall remain in effect, including a pro rata percentage of the rent commensurate with the percentage of the remainder, as to the remainder unless Lessee shall give written notice of termination to Lessor within thirty (30) days of the date of taking. In the event of either a total or partial taking by condemnation, Lessor shall be entitled to all compensation paid as a result of the taking, whether by negotiated settlement or judgment entered by a court, and Lessee shall have no claim to or interest in any of the proceeds of such eminent domain action.
25. Memorandum of Lease. A short form Memorandum of Lease referring to this Lease shall be executed by Landlord and Tenant and recorded in the Official Records of the County of Santa Clara, California.
26. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law principles.
Proper venue for legal actions will be exclusively vested in a state court in the County of Santa Clara.
The parties agree that subject matter and personal jurisdiction are proper in state court in the County of Santa Clara and waive all venue objections.
27. Integrated Agreement; Amendment . This document represents the entire and integrated agreement between Lessor and Lessee and supersedes all prior negotiations, representations, and agreements, either written or oral. This document may be amended only by written instrument signed by both Lessor and Lessee.
28. Electronic Execution and Counterparts. The Parties agree that this Lease may be signed electronically and may be executed in counterparts.
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LESSOR:
CITY OF SUNNYVALE,
a California chartered municipal corporation
Kent Steffens, City Manager
APPROVED AS TO FORM:
John Nagel, City Attorney
LESSEE:
MIDPEN HOUSING CORPORATION,
a California nonprofit public benefit corporation
By
Name:
Its:
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Exhibit A
Legal Description
Real property in the City of Sunnyvale, County of Santa Clara, State of California, described as follows:
PARCELS 1, 2, 3 AND 4, AS SHOWN ON THE PARCEL MAP ENTITLED "LANDS OF WELLS FARGO BANK AND FERNANDEZ, ET UX", WHICH MAP WAS FILED FOR RECORDS IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ON MAY 26, 1978 IN BOOK 419 OF MAPS AT PAGES 20 AND 21.
APN: 165-13-064; 165-13-051; 165-13-052; & 165-13-053
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Exhibit B
INSURANCE REQUIREMENTS FOR LESSEES
Lessee shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or da mages to property which may arise from or in connection with the performance of the work by the Lessee, his agents, representatives, or employees.
Minimum Scope and Limits of Insurance Lessee shall maintain limits no less than:
1. Commercial General Liability: $2,000,000 per occurrence and $4,000,000 aggregate for bodily injury, personal injury and property damage. ISO Occurrence Form CG 0001 or equivalent is required.
2. Workers' Compensation: Statutory Limits Employer's Liability: $1,000,000 per accident for bodily injury or disease.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared and approved by the City of Sunnyvale.
The lessee shall guarantee payment of any losses and related investigations, claim administration and defense expenses within the deductible or self-insured retention.
Other Insurance Provisions
The general liability policies are to contain, or be endorsed to contain, the following provisions:
1. The City of Sunnyvale, its officials, employees, agents and volunteers are to be covered as additional insureds with respects to liability arising out of activities performed by or on behalf of the Lessee; products and completed operations of the Lessee; Property owned, occupied or used by the Lessee; or automobiles owned, leased, hired or borrowed by the Lessee. The coverage shall contain no special limitations on the scope of protection afforded to the City of Sunnyvale, its officers, employees, agents or volunteers.
2. For any claims related to this projects, the Lessee's insurance shall be primary. Any insurance or self-insurance maintained by the City of Sunnyvale, its officers, officials, employees, agents and volunteers shall be excess of the Lessee's insurance and shall not contribute with it.
3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not effect coverage provided to the City of Sunnyvale, its off icers, officials, employees, agents or volunteers.
4. The Lessee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
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5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified main, return receipt requested, has been given to the City of Sunnyvale.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City of Sunnyvale.
Verification of Coverage
Lessee shall furnish the City of Sunnyvale with an original Certificate of Insurance effecting the coverage required. The certificates are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates are to be received and approved by the City of Sunnyvale prior to commencement of lease.
Attachment 3