DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT is dated this ______ day of _______, 2000 by and between the Sunnyvale Redevelopment Agency (the "Agency"), a public body, corporate and politic, and M-D Downtown Sunnyvale, LLC (the "Developer"), a Delaware limited liability company, with reference to the following facts:
A. Pursuant to its authority granted under California law, the Agency has the responsibility to carry out the Redevelopment Plan for the Downtown Sunnyvale Redevelopment Project, which was adopted by Ordinance No. 1796-75 of the City Council of the City of Sunnyvale on November 26, 1975. The redevelopment plan as described and as thereafter from time to time amended is referred to in this Agreement as the "Redevelopment Plan" and is incorporated into this Agreement by reference.
B. The City of Sunnyvale (the "City") and the Agency own certain real property within the City described in the attached Exhibit A (the "Agency Parcel") currently used primarily for public parking. The City has agreed to convey the portions of the Agency Parcel it owns to the Agency. The Agency purchased from third parties certain real property within the City described in the attached Exhibit B (the "Acquisition Parcel") which parcel is adjacent to the Agency Parcel. The Agency Parcel and Acquisition Parcel are referred to in this Agreement collectively as the "Property." All of the Property was acquired directly by the City or by the Agency with funds provided by the City. The City owns certain real property within the City described in the attached Exhibit C (the "Underground Parking Site") which is adjacent to the Property. In addition, the City owns parcels adjacent to the Property including the area on which the Hill Building is presently located which are shown on Exhibit D-3 ("Surface Parking Sites").
C. The Property, the Underground Parking Site and the Surface Parking Sites are located in the area governed by the Redevelopment Plan. The Agency has determined that development of the Property, the Underground Parking Site and the Surface Parking Sites in the manner contemplated by this Agreement will assist in the implementation of the Redevelopment Plan and the elimination of conditions of blight in the area governed by the Redevelopment Plan by providing for redevelopment of the currently underutilized Property for uses consistent with the Downtown Sunnyvale Specific Plan and replacement of the surface parking on the Property with a below-ground parking structure on the Underground Parking Site and additional surface parking on the Surface Parking Sites. A public plaza will be constructed above the belowground parking structure on the Underground Parking Site.
D. The purposes of this Agreement are to provide a mechanism whereby the Agency will convey the Property to the Developer, the Developer will redevelop the Property in accordance with this Agreement and the Redevelopment Plan and will construct the Parking Improvements, on the Underground Parking Site and Surface Parking Sites.
E. The Agency has determined that is impractical from an architectural, engineering and construction standpoint to separately construct the Parking Improvements to be constructed on the Underground Parking Site and Surface Parking Sites because of their physical interrelationship with the other Improvements to be constructed by the Developer, and that the construction of the Parking Improvements pursuant to this Agreement would result in a lower public cost and greater benefit than if such Parking Improvements were separately bid and constructed by the Agency.
F. The Agency has concluded that the Developer has the necessary capacity to carry out the commitments herein contained and that this Agreement is in the best interests and will materially contribute to the implementation of the Redevelopment Plan.
G. The Agency and Developer previously entered into a Disposition and Development Agreement (the "Prior DDA") dated October 9, 1998 pertaining to the Property and the Underground Parking Site. As set forth below, the parties, by execution of this Agreement are terminating the Prior DDA.
The following capitalized terms shall, for purposes of this Agreement, have the meanings set forth in this Section 1.1.
"Acquisition Parcel" means the real property described in the attached Exhibit B.
"Affiliate" means a person or entity which directly or indirectly controls, is controlled by or is under common control with the Developer or an entity at least a majority of whose economic interest is owned by the Developer or John Mozart.
"Agency" means the Sunnyvale Redevelopment Agency, a public body, corporate and politic, formed and existing under the Community Redevelopment Law.
"Agency Parcel" means, subject to the provisions of Section 2.1 below relating to subdivision of the Property, the real property described in the attached Exhibit A.
"Agreement" means this Disposition and Development Agreement between the Agency and Developer, as the same may be amended.
"Applicable Land Use Entitlements" means the City and any other governmental permits and approvals necessary to construct the Improvements including overall design and architectural review but excluding building, grading or other ministerial construction permits.
"Application Plans" means the drawings and plans for the Improvements which the Developer has submitted to the City as part of its application for the Applicable Land Use Entitlements which plans and drawings are attached as Exhibit E.
"Arbitrator" is defined in Section 2.6 below.
"Building I Improvements", "Building II Improvements" and "Building III Improvements" mean, respectively, the improvements Developer will develop and construct on the Building I Site, Building II Site and Building III Site which improvements are described in detail in Section 2.2 below. "Building Improvements" shall mean any one or more of the foregoing.
"Building I Site", "Building II Site" and "Building III Site" mean, subject to the provisions of Section 2.1 below relating to subdivision approval for the Property, the portion of the Property so designated on Exhibit D-2, Development Sites Map, and on which Developer will develop, respectively, the Building I Improvements, Building II Improvements and Building III Improvements. "Building Site" means any one or more of the foregoing.
"Certificate of Completion" means the certificate the Agency will provide pursuant to Section 4.6.
"City" means the City of Sunnyvale, a charter city.
"Closing" means the close of escrow for the conveyance of any portion of the Property from the Agency to Developer, and the recording of the Grant Deed in the Official Records of Santa Clara County, California.
"Construction Plans" means the detailed plans, specifications, design drawings and plans, working drawings, elevations and other information on which Developer and its contractors and subcontractors will rely in obtaining required permits for and constructing the Improvements.
"Deposit" means the deposit in the amount of Five Hundred Thousand Dollars ($500,000) which the Developer is to make pursuant to Section 7.5 below.
"Developer" means M-D Downtown Sunnyvale, LLC, a Delaware limited liability company, and its successors and assigns as permitted under this Agreement.
"Downtown Specific Plan" means the Downtown Sunnyvale Specific Plan adopted by the City and dated March 1993 and the provisions of Sunnyvale Municipal Code Chapter 19.28 implementing the Downtown Sunnyvale Specific Plan.
"Downtown Specific Plan Requirements" means the requirements for design of the Improvements derived from the Downtown Specific Plan which requirements are set forth in the attached Exhibit F.
"Easement Agreement" means the agreement attached hereto as Exhibit K and described in Section 3.11 below.
"Escrow Holder" means First American Title Guaranty Company.
"Grand Surface Site" means the parcel designated as the "Grand Site" on Exhibit D-3 on which Developer will construct a portion of the Surface Parking Improvements.
"Grant Deed" means the Grant Deed attached to this Agreement as Exhibit H pursuant to which the Agency will convey the Property or portions thereof to Developer.
"Hazardous Materials" means any substances:
Defined as or included, or which becomes defined or included, in the definition of "hazardous substance," "hazardous waste," "hazardous material," "extremely hazardous waste," "designated waste," "restricted hazardous waste," or "toxic substance," or similar term under any local, state, or federal law or under the regulations adopted or promulgated pursuant thereto, including but not limited to, the Clean Air Act, 42 USC §§ 7401 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act, 42 USC §§ 9601 et seq.; the Resource Conservation and Recovery Act, 42 USC §§ 6901 et seq.; the Toxic Substance Control Act, 15 USC §§ 2601 et seq.; the Hazardous Materials Transportation Act, 49 USC §§ 1801 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 USC §§ 135 et seq.; the Atomic Energy Act of 1954, 42 USC §§ 2014 et seq.; the Nuclear Waste Policy Act of 1982, 42 USC §§ 10101 et seq.; the California Hazardous Waste Control Law, California Health & Safety Code §§ 25100 et seq.; the Porter-Cologne Water Quality Control Act, California Water Code §§ 13000 et seq.; the Carpenter-Presley-Tanner Hazardous Substance Account Act, California Health and Safety Code §§ 25300 et seq. and their associated regulations; or
Which is explosive, corrosive, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is regulated by any appropriate governmental authority as a hazardous material; or
Which is or contains oil, gasoline, diesel fuel or other petroleum hydrocarbons; or
Which is or contains polychlorinated biphenyls, asbestos, urea formaldehyde foam insulation, radioactive materials; or
Which is radon gas.
The term "Hazardous Materials" may include without limitation raw materials, building components, wastes, and the products of any manufacturing or other activities on the Property.
"Hill Surface Site" means the parcel designated as the "Hill Site" an Exhibit D-3 on which Developer will construct a portion of the Surface Parking Improvements.
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Improvements" means collectively the Building I Improvements, Building II Improvements, Building III Improvements and the Parking Improvements.
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Parking Improvements" means the public improvements Developer will develop and construct consisting of the Underground Parking Improvements and the Surface Parking Improvements which improvements are described in detail in Section 2.2 below; the Parking Improvements do not include the private underground parking Developer will construct below the public parking on the Underground Parking Site.
"Phase" means as a phase of the Improvements as described in Section 2.2 below.
"Plaza Improvements" means the plaza improvements the Agency and/or City will construct on the Underground Parking Site which improvements are described in detail in Section 4.11 below.
"Prior DDA" means the Disposition and Development Agreement dated October 9, 1998 by and between Agency and Developer.
"Property" means the Agency Parcel and the Acquisition Parcel, collectively.
"Redevelopment Plan" means the Redevelopment Plan for the Downtown Sunnyvale Redevelopment Project which was adopted by Ordinance No. 1796-75 of the City Council of the City on November 26, 1975, and any subsequent amendment to that plan.
"Parking Improvements Account" is defined in Section 7.6 below.
"Street Parking Site" means the street area as shown on Exhibit D-3 where the Developer will construct Surface Parking Improvements.
"Surface Parking Improvements" means parking and related access and landscaping improvements the Developer will construct on the Surface Parking Sites, which improvements are described in detail in Section 2.2 below.
"Surface Parking Sites" means the parcels on which Developer will construct the Surface Parking Improvements consisting of the Hill Surface Site, Grand Surface Site, Street Surface Site, and Building II Site as shown on the attached Exhibit D-3.
"Transfer" has the meaning set forth in Section 5.1.
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Underground Parking Improvements" means the subsurface parking improvements to be constructed on the Underground Parking Site including approximately 250 public parking spaces, which improvements are described in detail in Section 2.2 below.
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Underground Parking Site" means, subject to the provisions of Section 2.1 below relating to the subdivision approvals for the Property, the real property described in the attached Exhibit C on which the Developer will develop the Underground Parking Site Improvements and the Agency and/or City will develop the Plaza Improvements.
The following exhibits are attached to this Agreement and are incorporated in this Agreement:
Exhibit A Agency Parcel
Exhibit B Acquisition Parcel
Exhibit C Underground Parking Site
Exhibit D-1 Current Site Map
Exhibit D-2 Development Sites Map
Exhibit D-3 Surface Parking Sites
Exhibit E Application Plans
Exhibit F Specific Plan Requirements
Exhibit G Schedule of Performance
Exhibit H Grant Deed
Exhibit I-1 Title Exceptions for Building I Site
Exhibit I-2 Title Exceptions for Building II Site
Exhibit I-3 Title Exceptions for Building III Site
Exhibit J Parking Structure Load Requirements
Exhibit K Easement Agreement
Attached as Exhibit G is a schedule of performance setting forth the times for performance of various tasks pursuant to this Agreement. If there is any conflict between the schedule of performance attached as Exhibit G and the other provisions of this Agreement, the other provisions of this Agreement shall prevail.
The Property consists of the Agency Parcel and the Acquisition Parcel. The Parking Parcel is located adjacent to the Agency Parcel. The general location of those parcels is shown on the attached Exhibit D-1, the Current Site Map.
Pursuant to the provisions of this Agreement, the Agency will convey the Property to Developer and Developer will develop the Property in up to three Phases. The sites for each Phase are: the Building I Site of approximately 44,431 square feet, the Building II Site of approximately 41,382 square feet and the Building III Site of approximately 83,635 square feet. The general location of those Sites and the Underground Parking Site is shown on the attached Exhibit D-2, the Development Sites Map.
As part of its applications for the Applicable Land Use Entitlements, Developer shall apply to the City for the subdivisions, parcel maps and/or lot line adjustments necessary to create the Building I Site, the Building II Site, the Building III Site and the Underground Parking Site each as a separate legal parcel. Upon approval of the applicable subdivision, parcel map or lot line adjustment, the references in this Agreement to the Building I Site, the Building II Site, the Building III Site and the Underground Parking Site shall refer to those parcels as shown on the applicable approved subdivision, parcel map or lot line adjustment.
Upon completion of all Improvements, it is anticipated that approximately 1,600 subsurface parking stalls will be constructed including 250 parking stalls on the Underground Parking Site which will be exclusively public parking, an additional approximately 320 parking spaces which will be made available for public parking use all day on weekends and weekdays from 6 p.m. to 3 a.m. and approximately 250 private parking spaces which are part of the Building III Improvements and will be located on Underground Parking Site. Implementation of the foregoing will include covenants, conditions and restrictions and reciprocal easement agreements recorded against and binding upon all of the Property provided for in Section 3.11 below. In addition, Developer may apply to the City for such subdivisions, parcel maps and/or lot line adjustments as may be necessary to create a separate legal parcel under the Subdivision Map Act for the subsurface parking areas beneath the Building Sites separate from separate legal parcels for the air space envelopes necessary to accommodate the building and other above-surface improvements to be constructed on the Building Sites.
Pursuant to the provisions of this Agreement, Developer will develop and construct on the Property, the Underground Parking Site and the Surface Parking Sites, the Improvements described in this Section 2.2. The plans for the Improvements (the "Application Plans") are shown on Exhibit E attached hereto.
Developer will construct on the Building I Site the Building I Improvements consisting of a Class A office building of approximately 120,000 square feet with a height not to exceed 80 feet to the top of the useable space and five stories, an underground parking structure and landscaping, walkways and other exterior improvements consistent with the Downtown Specific Plan. The Building I Improvements will have high quality exterior finishes and articulation suitable for a Class A office building. The office building on the Building I Site shall have a unique architectural identity.
Developer will construct on the Building II Site the Building II Improvements consisting of one Class A office building of approximately 130,000 square feet with a height not to exceed 94 feet to the top of the usable space and six stories, an underground parking structure and landscaping, walkways and other exterior improvements consistent with the Downtown Specific Plan. The Building II Improvements will have high quality exterior finishes and articulation suitable for Class A office building. The office building on the Building II Site shall have a unique architectural identity.
Developer will construct on the Building III Site and a portion of the Underground Parking Site the Building III Improvements consisting of a Class A office building of approximately 200,000 square feet with a height not to exceed 94 feet to the top of the usable space and 6 stories, an underground parking structure and landscaping, walkways and other exterior improvements consistent with the Downtown Specific Plan. The portion of the Building III Improvements to be construed on the Underground Parking Site consists of a portion of the underground parking structure containing approximately 250 spaces. The Building III Improvements will have high quality exterior finishes and articulation suitable for a Class A Office Building. The office building on the Building III Site shall have a unique architectural identity.
The Developer shall develop and construct the parking improvements consisting of the Underground Parking Improvements and the Surface Parking Improvements. The Underground Parking Improvements consist of an underground parking structure containing approximately 250 public parking spaces on the Underground Parking Site. The Surface Parking Improvements consist of the following:
Demolition of the existing building on the Hill Surface Site and construction thereon of approximately 28 public surface parking spaces and related landscaping and access improvements.
Creation of approximately 72 public surface parking spaces and related access and landscaping improvements on the Grand Surface Site and the Street Surface Site.
Construction of temporary public surface parking on approximately one half (1/2) of the Building II Site, provided, however, that this temporary parking shall not be required if the Improvements are constructed in a single Phase.
The Improvements shall be consistent with the Application Plans attached as Exhibit E and the attached Downtown Specific Plan Requirements as Exhibit F, provided, however, if the Application Plans are revised as a result of the City's conditions to the Applicable Land Use Entitlements, the Application Plans shall refer to those plans as so revised. The ground floors of each building shall have clear exterior entries and the ground floor and outdoor plazas for each building shall be designed to create an attractive streetscape and a pedestrian oriented circulation and atmosphere. The Improvements shall include any off-site improvements Developer is required to construct as a condition of the Applicable Land Use Entitlements. Where height of buildings is specified in this Section 2.2 as "to the top of the useable space," that specification shall not prevent additional rooftop features as permitted by the Sunnyvale Municipal Code which specifies as follows: "Towers, spires, chimneys, machinery penthouses not exceeding 25% of the roof area on which the penthouse is located, scenery lofts, cupolas, water tanks, telecommunications facilities, high bay test facilities and similar architectural and utility structures, including equipment screening, and necessary mechanical appurtenances, may exceed the maximum building height in any zoning district by a maximum of 25%" except that the maximum allowable additional height shall be 20 feet. At least 10,000 square feet of ground floor space in the Improvements shall be designed for retail uses. The majority of the retail space shall face the public plaza. The retail space shall be initially offered for rent for retail uses with shell improvements completed. If, despite good faith efforts, Developer is unable to rent that space for retail uses within six (6) months following issuance of a Certificate of Completion for the portion of the Improvements that includes the retail space, then Developer may convert that space to office or other uses permitted by the City. The Building III Improvements shall include a display case of approximately 100 square feet located on an exterior wall facing the public place or other outdoor public location. The Developer shall consult with the Agency as to the location of the display area. The Developer shall make that display space available to the City or its designee at no charge for the display of exhibits of historic, scientific or civic value.
The Developer may construct all the Improvements in a single Phase. Alternatively, the Developer may construct the Improvements in up to three Phases as follows:
The first Phase shall include (a) either the Building I Improvements or the Building III Improvements, (b) the Surface Parking Improvements on the Hill Surface Site and Building II Site and (c) if the first Phase includes the Building III Improvements, the Underground Parking Improvements and the Surface Parking Improvements on the Grand Surface Site.
The second Phase shall include (a) the Building III Improvements if those improvements are not included in the first Phase or, if the Building III Improvements are included in the first Phase, the Building II Improvements, and (b) if the second Phase includes the Building III Improvements, the Underground Parking Improvements and the Surface Parking Improvements on the Grand Surface Site.
The third Phase shall include the Building I Improvements or the Building II Improvements, whichever has not been included in the first two Phases, and the Surface Parking Improvements on the Street Surface Site. The third Phase may be combined with the second Phase.
Within ninety (90) days following the date the Applicable Land Use Entitlements become final, Developer shall notify the Agency in writing as to the Improvements that will be included in each Phase.
Prior to the execution of this Agreement, the Developer has applied to the City for the Applicable Land Use Entitlements for the Improvements. The applications conformed with the description of the Improvements set forth in Section 2.2 and included the Application Plans. The applications included a site plan, architectural elevations, finish boards, traffic study and such other information as the City or relevant government agency may require. The Agency shall assist Developer in the City permit and approval process by providing information concerning the contents of the applications and, if necessary, joining in the applications. The Agency staff and Developer shall hold four informal public meetings to review the application prior to formal public hearings. The Developer understands and acknowledges that this Agreement does not limit the discretion of the City in its determinations concerning Developer's applications for the Applicable Land Use Entitlements.
At the same time as Developer submitted its application for the Applicable Land Use Entitlements to the City, it also submitted the Application Plans that are part of that application to the Agency for review and approval. By execution of this Agreement, the Agency has approved the Application Plans.
The Developer shall prepare Construction Plans for the construction of the Improvements. The Construction Plans shall be completed in phases as follows:
The Developer shall complete the Construction Plans for the Improvements in the first Phase within one hundred eighty (180) days following approval of the Applicable Land Use Entitlements.
The Developer shall complete the Construction Plans for the Improvements in the second Phase within two hundred seventy (270) days following approval of the Applicable Land Use Entitlements.
The Developer shall complete the construction plans for the Improvements in the third Phase within three hundred sixty (360) days following approval of the Applicable Land Use Entitlements.
For the purposes of this Agreement, the Applicable Land Use Entitlements shall be considered final or approved after all applicable City administrative appeal and referendum periods have expired and thirty (30) days have elapsed following the filing of a Notice of Determination for the Applicable Land Use Entitlements without a suit being filed to challenge the Applicable Land Use Entitlements. If such suit is filed, the Applicable Land Use Entitlements shall be considered final or approved upon entry of the trial court judgment upholding the Applicable Land Use Entitlements or dismissal of the suit.
During the preparation of the Construction Plans for the Parking Improvements, the Developer and its architects and engineers and other relevant consultants shall consult with the Agency and its consultants concerning the design of the Parking Improvements. The Parking Improvements to be located on the Underground Parking Site shall be designed in accordance with criteria provided by the Agency to assure that the Parking Improvements (i) will contain 250 public parking spaces on no more than two levels below grade; (ii) will be designed so as to allow efficient and cost-effective operation and maintenance upon completion; (iii) will have a watertight roof so as to permit construction of the Plaza Improvements above the Parking Improvements; (iv) will be sufficient structurally to permit construction of the Plaza Improvements above such Parking Improvements and (v) will satisfy the load requirements set out in Exhibit J. As set forth above, private parking spaces for Building III will be constructed on the Underground Parking Site (in addition to the 250 public parking spaces) and will be made available through a reciprocal easement agreement.
The Parking Improvements to be constructed on the Hill Surface Site shall be designed to contain at least 28 parking spaces at grade on a paved and striped surface with appropriate landscaping and other improvements. The Parking Improvements to be constructed on the Grand Surface Site and Street Surface Site shall be designed to contain at least 72 parking spaces at grade on a paved and striped surface with appropriate landscaping and other improvements. The Parking Improvements on the Building II Site shall consist of temporary parking spaces at grade on a paved and striped surface designed to reasonably maximize the number of spaces available in the area on which the parking will be constructed as set forth in Section 2.2(e)(iii).
Upon completion, the Developer shall submit the Construction Plans for the Parking Improvements to the Agency for review. The Agency shall either approve or disapprove the Construction Plans for the Parking Improvements. If the Agency disapproves the Construction Plans for the Parking Improvements, it shall specify in detail and in writing the reasons for disapproval. The Developer shall either revise the Construction Plans for the Parking Improvements so as to remove the basis for disapproval and submit the revised Construction Plans for the Parking Improvements to the Agency for approval or shall request consultation with the Agency. If the Developer requests consultation, the Agency and Developer shall make good faith efforts to agree on changes to the Construction Plans for the Parking Improvements satisfactory to both Developer and Agency. If Developer and Agency fail to reach agreement within thirty (30) days following Developer's request for consultation, the Agency and Developer shall submit the disputed issues concerning the Construction Plans for the Parking Improvements to an arbitrator mutually agreeable to the Agency and Developer (or if the Agency and Developer cannot agree on an arbitrator within sixty (60) days following the Developer’s consultation request, an arbitrator selected through the arbitrator selection process of the American Arbitration Association) (the "Arbitrator") for resolution in accordance with the criteria set forth in this Section 2.6. The decision of the Arbitrator shall be final and binding on the Agency and Developer.
The Developer shall apply to the City, diligently pursue and obtain building and construction permits for construction of the Improvements. Developer shall apply for those permits on the following schedule:
F
or the Improvements in the first Phase, (other than Parking Improvements), by the date the Construction Plans for the Improvements in the first Phase are required to be completed pursuant to Section 2.5 above.
For the Improvements in the second Phase, (other than Parking Improvements), by the date the Construction Plans for the Improvements in the second Phase are required to be completed pursuant to Section 2.5 above.
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or the Improvements in the third Phase, by the date the Construction Plans for the Improvements in the third Phase are required to be completed pursuant to Section 2.5.
For the Parking Improvements, within ten (10) days following Agency approval of the Construction Plans for the Parking Improvements, provided, however, if disputes arise that are subject to arbitration pursuant to Section 2.6 above, such time period shall be extended to a date within thirty (30) days following the decision of the Arbitrator.
The applications for building and construction permits shall be consistent with and incorporate the approved Construction Plans.
At the time the Developer obtains building and construction permits for Improvements in a particular Phase, it shall also submit evidence of financing to the Agency which evidence shall show to the reasonable satisfaction of the Agency that the Developer has sufficient equity and/or loan financing committed to pay the costs of the Improvements in that Phase including any portion of the Parking Improvements to be constructed as part of that Phase. At the Closing for the portion of the Property included in a Phase, the Agency may require Developer to confirm that the approved financing remains available as evidenced by available loan and equity documentation.
At the time the Developer obtains building and construction permits for the Improvements in a particular Phase, it shall also submit reasonably satisfactory evidence to the Agency that it has entered into contracts with reputable contractors for construction of the relevant Improvements at cost consistent with the evidence of financing availability as approved by the Agency pursuant to Section 2.8 above, including contracts for the construction of any portion of the Parking Improvements required to be constructed in that Phase. In connection with construction of the Parking Improvements, the Developer shall assure that its contractors and subcontractors pay prevailing wages to the extent required by law.
Prior to the Closing, the Agency shall provide Developer access to the Property and Underground Parking Site and Surface Parking Sites for the purposes of determining the condition of those parcels or preparing plans or other information for construction of the Improvements, including but not limited to environmental testing.
Subject to the terms and conditions of this Agreement, the Agency shall sell the Property to Developer, and Developer shall purchase the Property from the Agency.
To accomplish the conveyance of the Property, the parties shall promptly after the execution of this Agreement establish an escrow with the Escrow Holder. On or before the Closing for each portion of the Property, the parties shall execute and deliver to Escrow Holder written instructions consistent with this Agreement to consummate the conveyance of the portion of the Property to be conveyed at the Closing.
The purchase price or consideration for the Property shall be Ten Million Seventy-seven Thousand Dollars ($10,077,000) payable as follows:
The purchase price for the Building I Site shall be Two Million Six Hundred Twenty-five Thousand Three Hundred Thirty Dollars ($2,625,330) payable in cash at the Closing for the Building I Site.
The purchase price for the Building II Site shall be Two Million Nine Hundred Thirty-five Thousand Eight Hundred Sixty-Five Dollars ($2,935,865) payable in cash at the Closing for the Building II Site.
The purchase price for the Building III Site shall be Four Million Five Hundred Fifteen Thousand Eight Hundred and Five Dollars ($4,515,805) payable in cash at the Closing for the Building III Site.
If the Closing for the first Phase includes only the Building I Site, then at the Closing for the first Phase the entire purchase price paid at the Closing (i.e., $2,625,330) shall be paid directly to the Agency. Thereafter, at the Closing for the second Phase, the first One Million Twenty-six Thousand Six Hundred Seventy Dollars ($1,026,670) of the purchase price paid at the Closing shall be paid directly to the Agency. The balance of the purchase price paid at the Closing for the second Phase and all of the purchase price paid at the Closing for the third Phase shall be paid into the Parking Improvements Account and thereafter disbursed in accordance with the provisions of Section 7.6 below.
If the Closing for the first Phase includes the Building III Site, then at the Closing for the first Phase, the first Three Million Six Hundred Fifty-two Thousand Dollars ($3,652,000) paid at the Closing shall be paid directly to the Agency at the Closing. The balance of the purchase price paid at the Closing for the first Phase and all of the purchase price paid at the Closings for subsequent Phases shall be paid into the Parking Improvements Account and thereafter disbursed in accordance with the provisions of Section 7.6 below.
The Closing, in respect of the Property, may occur in Phases based on the Phases of development and construction of the Improvements as determined in accordance with Section 2.2 above. For example, if the first Phase includes the Building I Improvements, then the Closing for the first Phase will be for the Building I Site; if the Building III Improvements are to be in the first Phase, then the closing for the first Phase will be for the Building III Site.
The Closing with respect to the portions of the Property shall occur as follows:
The Closing for the first Phase shall occur within thirty (30) days following the City's issuance of building and construction permits for the Improvements in the first Phase.
The Closing for the second Phase shall occur within thirty (30) days following the City's issuance of building permits for the Improvements in the second Phase.
The Closing for the third Phase shall occur within thirty (30) days following the City's issuance of building and construction permits for the Improvements in the third Phase.
Developer may obtain an extension of time for the Closing for the second and/or third Phase or the time for the completion of the Construction Plans for the second and/or third Phase in one month increments up to a total of six (6) months by paying the Agency the sum of Fifty Thousand Dollars ($50,000) for each month of the extension. Any extension for the Closing for the second Phase shall also extend the Closing for the third Phase by the same time period of extension.
At Closing for a Phase, the Agency shall convey to Developer the relevant portion of the Property included in the Phase pursuant to Grant Deed which shall be in substantially the form set forth in the attached Exhibit H which both parties shall execute. At the Closing for any Building Site, the improvement of which requires construction of Parking Improvements, the Agency shall also provide to Developer a right of entry for the real property on which the Parking Improvements are to be constructed allowing Developer to enter and occupy that parcel for purposes of constructing the Parking Improvements. At the Closing, the parties shall execute and record the easements specified in Section 3.11 below.
For each portion of the Property, the Agency shall deliver at the Closing exclusive possession of the portion of the Property conveyed at the Closing, provided, however, that the existing public parking on the portion of the Property conveyed at the Closing for the first Phase shall remain as public parking until the Surface Parking Improvements are substantially completed.
Upon the Closing for a portion of the Property, said portion shall be free and clear of all liens, encumbrances, clouds and conditions, rights of occupancy or possession, except:
conditions, covenants, restrictions or easements of record approved by Developer in writing;
the exceptions noted in the attached Exhibit I; and
easements for existing or relocated public utilities that the parties reasonably determine may remain on the Property following the Closing.
the easements provided for in Section 3.11 below.
Except as provided otherwise in this Agreement, Developer acknowledges and agrees that it will purchase the Property and occupy the Underground Parking Site, and Surface Parking Sites in an "as is" condition and that Developer shall be solely responsible for and shall bear all the costs of demolition, construction, reconstruction, rehabilitation, site preparation, correction of any soils, subsurface or structural conditions on the Property and Underground Parking Site, and Surface Parking Sites (including, but not limited to removal, remediation, monitoring or mitigation of any Hazardous Materials) to the extent necessary to put Property and Underground Parking Site, and Surface Parking Sites in a condition suitable for use and development in accordance with this Agreement. Prior to execution of this Agreement, the Agency provided to Developer all the reports in its possession regarding the condition of the Property and Underground Parking Site, and Surface Parking Sites including public utility plans. The Agency represents and warrants to Developer that the reports provided pursuant to this Section 3.7 constitute all the reports regarding the condition of the Property and Underground Parking Site, and Surface Parking Sites in the possession of the Agency. With regard to the Underground Parking Site, and Surface Parking Sites, the Agency shall be responsible for paying for the reasonable costs of remediating any Hazardous Materials conditions encountered in the course of the construction of the Parking Improvements, provided such conditions do not arise from the actions of Developer, its contractors, subcontractors, agents or employees.
Ad valorem taxes, if any, shall be prorated as of the date of the Closing. The lien of any non-delinquent bond or assessment shall be assumed by Developer and assessments payable thereon shall be prorated as of the date of the conveyance. Developer shall bear the cost of title insurance for the conveyance of the Property and shall pay any transfer tax on the conveyance of the Property to Developer. The Agency shall bear the cost of title company document preparation and recordation fees. All other costs of escrow (including the fee of escrow holder), if any, shall be evenly borne by the parties.
The obligations of the Agency under this Agreement to convey a portion of the Property to Developer at a Closing are subject to satisfaction of all relevant conditions set forth in this Section 3.9. The Agency may waive any or all of such conditions in whole or in part but any such waiver shall be effective only if made in writing. After a Closing, any such condition that has not been satisfied with respect to that Closing shall be treated as having been waived in writing, unless the parties agree otherwise at the time of the Closing.
The conditions set forth in this subsection (b) shall be applicable to each Closing under this Agreement.
Developer shall not be in default in the performance of any covenant or agreement to be performed by Developer under this Agreement.
All representations and warranties made by Developer in this Agreement shall be true and correct as if made on and as of such Closing.
No judicial or administrative suit, action, investigation, inquiry or other proceeding by any person shall have been instituted against the Agency which challenges the validity or legality of any of the transactions contemplated by this Agreement.
Developer shall have obtained the Applicable Land Use Entitlements.
Developer shall have obtained the building and construction permits necessary to construct Improvements in the applicable Phase (including the Parking Improvements as applicable in the Phase for which the Closing is to occur).
the Agency has approved the Developer's evidence of financing and construction contracts for the Phase for which the Closing is to occur.
The obligations of Developer under this Agreement to accept conveyance of a portion of the Property from the Agency at a Closing are subject to satisfaction of all of the relevant conditions set forth in this Section 3.10. Developer may waive any or all of such conditions in whole or in part but any such waiver shall be effective only if made in writing. After a Closing, any such condition that has not been satisfied with respect to that Closing shall be treated as having been waived in writing, unless the parties agree otherwise at the time of the Closing.
At each Closing, the Agency shall not be in default in the performance of any covenant or agreement to be performed by the Agency under this Agreement.
At each Closing, all representations and warranties made by the Agency in this Agreement shall be true and correct as if made on and as of such Closing.
At each Closing, no judicial or administrative suit, action, investigation, inquiry or other proceeding by any person shall have been instituted against Developer which challenges the validity or legality of any of the transactions contemplated by this Agreement.
At each Closing, the Escrow Holder shall be unconditionally and irrevocably committed to issue an American Land Title Association Owner's Policy Form B-1970 (Amended 10/17/70) of title insurance, with liability of not less than the purchase price, containing such ALTA form endorsements as Developer may reasonably require, insuring that fee simple absolute title to the portion of the Property being conveyed is vested in Developer subject only to the exceptions permitted pursuant to Section 3.6 above. The Developer shall be responsible for obtaining the survey necessary to obtain an ALTA policy.
At the Closing for the Building III Site, the Developer shall execute and the Agency shall execute and shall cause the City to execute and record in the official records of Santa Clara County the Easement Agreement in substantially the form set forth in Exhibit K attached hereto, subject to such changes as are reasonably necessary to accommodate the design of the Underground Parking Improvements and Building III Improvements. The Easement Agreement provides for:
The Easements over the Underground Parking Site in favor of the Developer for the benefit of the Building I Site, Building II Site and Building III Site permitting existence, construction, maintenance and operation of the portion of the Building III Improvements parking that will be located on the Underground Parking Site.
Easements over the Building III Site in favor of the City for the benefit of the Underground Parking Site permitting access to the Underground Parking Improvements from the planned entrance to the underground parking on the Building III Site immediately adjacent to the Underground Parking Site.
Easements in favor of the City and Agency permitting use of at least 320 parking spaces in the underground parking structure for the Building III Site for public evening and weekend parking. The spaces subject to this easement will be the portion of the Building III Improvements parking located on the Underground Parking Site and immediately adjacent to the Underground Parking Site.
Unless the Closing for the Building II Site occurs at the same time as the Closing for the Building III Site, at the Closing for the Building III Site, the Agency shall grant to Developer an easement over the Building II Site for construction of and access to the portion of the underground parking structure to be built on the Building II Site as part of the Building III Improvements. Said easement shall be in a form acceptable to the Agency and Developer.
Unless the Closing for the Building II Site has already occurred or occurs at the same time, at the Closing for the Building I Site, the Agency shall grant to Developer an easement over the Building II Site for construction of and access to the portion of the underground parking structure to be built on the Building II Site as part of the Building I Improvements. Said easement shall be in a form reasonably acceptable to the Agency and Developer.
Notwithstanding the provisions of Sections 3.4, 3.9 and 3.10 above, at the election of the Developer, the Closing for the Property may occur within thirty (30) days following the City's final approval of the Approved Land Use Entitlements. The election to go forward with the Closing pursuant to this Section 3.12 shall constitute a waiver by the Developer of its right to terminate this Agreement pursuant to Section 7.2 below. If the Closing goes forward pursuant to this Section 3.12, the conditions set forth in subsections (v) and (vi) of Section 3.9(b) above shall not be conditions to the Closing but Developer shall retain the responsibility for meeting the obligations set forth in Sections 2.5 through 2.9 above for each Phase within the times set forth in those sections.
Developer, for itself, its successors and assigns, hereby covenants and agrees to commence construction of the Improvements in each Phase within forty-five (45) days following the closing for the portion of the Property to be developed in a particular Phase. The Underground Parking Improvements to be constructed on the Underground Parking Site shall be constructed at the same time as the Building III Improvements are constructed as set forth in Section 2.2 above. The Surface Parking Improvements are to be constructed in the first Phase and shall be commenced and completed prior to demolition of the existing parking improvements on the Building I Site or Building III Site, whichever is included in the first Phase.
Notwithstanding the foregoing, if the Closing takes place pursuant to Section 3.12 above, then the Developer shall not commence and shall not be required to commence construction of the Improvements in a Phase until it has completed the Construction Plans for that Phase, obtained City building and construction permits for that Phase and obtained Agency approval of the construction contracts and financing plan for that Phase, all in accordance with the provisions of Sections 2.5 through 2.9 above (the "Preconstruction Conditions"), and the Developer shall commence construction of the Improvements for that Phase within forty-five (45) days following the first date when all the Preconstruction Conditions have been satisfied.
The Developer, for itself, its successors and assigns, hereby covenants and agrees to complete the construction of the Improvements in the first Phase within twenty-four (24) months following commencement of construction of the Improvements in that Phase. The Developer, for itself, its successors and assigns, hereby covenants and agrees to complete the construction of the Improvements in the second Phase within twenty-four (24) months following commencement of construction of the Improvements in that Phase. The Developer, for itself, it successors and assigns, hereby covenants and agrees to complete the construction of the Improvements in the third Phase within twenty-four (24) months following commencement of construction of the Improvements in that phase. Notwithstanding the foregoing, the Developer shall have thirty (30) months following the commencement of construction to complete the Improvements in the Phase that includes the Building III Improvements and Underground Parking Improvements.
Developer shall construct the Improvements substantially in accordance with the approved Construction Plans. The construction of the Improvements shall be carried out implementing customary construction practices for similar projects to minimize the disruption to surrounding businesses. Prior to commencement of construction of the Improvements in a Phase, the Agency and Developer shall jointly devise and agree on a plan that will guide the Developer and its contractors and subcontractors in minimizing such disruption. Such plan shall include providing signs directing customers to available parking and for reasonable staging areas for Developer's contractors and subcontractors that will minimize interference with surrounding businesses.
If Developer desires to make a material change in the approved Construction Plans, Developer shall submit the proposed change to the Agency for review. A material change shall be one requiring the exercise of discretion in connection with the Applicable Land Use Entitlements. The Agency shall approve or disapprove of the change within fifteen (15) days following submission of the proposed change. The Agency shall not unreasonably withhold approval of a requested change if it is consistent with this Agreement. For the purposes of this Section 4.4, a change shall be deemed material if it has a material effect on the size of the Improvements, the use of the Improvements or the exterior design of the Improvements. Any change in the Constructions Plans shall also be submitted to and approved by the City as required by applicable City codes.
The Developer and its contractor(s) and their successors, assigns and subcontractors shall not discriminate against any employee or applicant for employment in connection with the construction of the Improvements because of race, color, religion, ethnic group identification, sex, marital status, ancestry or national origin. Each of the following activities shall be conducted in a non-discriminatory manner: hiring; upgrading; demotion and transfers; recruitment and recruitment advertising; layoff and termination; rate of pay and other forms of compensation; and selection for training including apprenticeship. Moreover, the Developer shall require the contractor(s) and the subcontractors to give preference, to the extent practicable, for employment to those individuals residing within the geographical area governed by the Redevelopment Plan as provided by relevant State law.
Promptly after substantial completion of the construction of the Improvements in a Phase in accordance with those provisions of this Agreement relating solely to the obligations of Developer to carry out the construction of the Improvements in that Phase, the Agency will provide an instrument so certifying (the "Certificate of Completion"). For any Phase that includes construction of the Parking Improvements, a Certificate of Completion will not be issued until the Agency has certified completion of such Parking Improvements pursuant to Section 4.10 below. The Certificate of Completion shall be conclusive determination that the covenants in this Agreement with respect to the obligations of Developer, its successors and assigns, to carry out the construction of the Improvements in that phase have been met. The Certificate of Completion for a Phase shall be in such form as will enable it to be recorded among the official records of Santa Clara County. Such certification and determination shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of a deed of trust and shall not be deemed a notice of completion under the California Civil Code.
During construction of the Parking Improvements, Developer shall take such steps as are necessary to keep the property on which such improvements are being constructed free of liens or other encumbrances created in connection with Developer's possession of such property and construction of such Parking Improvements. If a lien or other encumbrance nevertheless attaches to the Underground Parking Site or other property on which the Parking Improvements are being constructed, the Agency may require Developer to take such steps as the Agency determines are reasonably necessary to protect against such lien or encumbrance including, without limitation, requiring Developer to provide the Agency with a bond, letter of credit or other form of security in an amount equal to one hundred fifty percent (150%) of the amount of the lien or encumbrance.
Developer shall or shall cause its contractors to obtain performance and payment bonds in conjunction with construction of the Parking Improvements. The required bonds shall be in the full amount of the cost of construction of the Parking Improvements and shall name the Agency as co-obligee.
During construction of the Parking Improvements, said improvements shall be owned by Developer or an Affiliate, and Developer or the Affiliate shall be solely responsible for any taxes or charges arising from the ownership, existence or construction of the Parking Improvements or from possession or occupancy of the property on which such improvements are being constructed during construction of the Parking Improvements. Upon completion of such Parking Improvements and Agency certification of completion in accordance with Section 4.10 below, the Developer or Affiliate shall transfer ownership of such Parking Improvements to the Agency by deed, bill of sale or other conveyance upon which the parties reasonably agree and provide the Agency with "as-built" construction plans and drawings for those improvements. The sole responsibility of the Developer and its Affiliate concerning the adequacy of construction of the Parking Improvements shall be to assign to the Agency all of Developer and its Affiliate's rights in and to any warranties obtained from or other rights in respect of the contractors, subcontractors and design professionals who constructed and designed the Parking Improvements. All of the contracts that Developer or its Affiliate enter into for design or construction of the Parking Structure shall contain customary warranties in a form approved by the Agency which approval shall not be unreasonably withheld.
During the course of construction of the Parking Improvements, the Developer shall permit Agency representatives to have access to the property on which such improvements are being constructed for the purpose of inspecting the construction of the Parking Improvements. If, as a result of those inspections, the Agency determines that the Parking Improvements are not being constructed in accordance with the approved Construction Plans, the Agency shall notify Developer who shall correct, at Developer's sole cost, the work to make it conform to the Construction Plans. When such Parking Improvements are completed, the Agency shall make a final inspection and notify Developer of any items that have not been completed or have not been constructed in accordance with the approved Construction Plans. Developer shall thereafter complete and correct the work at Developer's sole cost. If there is any dispute between the Agency and Developer regarding completion of the Parking Improvements or whether the Parking Improvements have been constructed in accordance with the approved Construction Plans, the Agency and Developer shall make good faith efforts to resolve the dispute. If the dispute is not resolved within thirty (30) days, the dispute shall be submitted to the Arbitrator for resolution. The decision of the Arbitrator shall be final and binding on the Agency and Developer.
Upon completion and conveyance of the Parking Improvements to be constructed on the Underground Parking Site to the Agency, the Agency shall use its reasonable efforts, subject to applicable governmental review, approval and permitting processes, to construct or to have the City construct at a cost of at least $1,000,000 the Plaza Improvements above the Parking Improvements. In the event the Plaza Improvements are not completed within three (3) years following completion of the Underground Parking Improvements, the Agency shall pay to the Developer or its assigns a sum equal to One Million Dollars ($1,000,000) less the amount actually spent for design and construction of the Plaza Improvements prior to such date. The foregoing payment shall be the Developer's sole remedy for the failure of the Plaza Improvements to be commenced or constructed in a timely manner.
Developer understands and agrees that the Property will be included in a downtown parking district pursuant to which an annual fee will be imposed on the Developer or its successors and assigns as owner of the Property. Developer shall consent to and cooperate in the formation of such district and/or inclusion of the Property in the District provided that (x) the maximum annual fee that may be imposed on the Developer does not exceed $75 (adjusted annually beginning July 1, 1999 by the increase in the Consumer Price Index for the U.S. and Selected Areas for Urban Wage Earners and Clerical Workers, all items (1982 - 1984 = 100) for the San Francisco/Oakland Consolidated Metropolitan Statistical Area, as published by the Department of Labor, Bureau of Labor Statistics) for each parking space deficit on the Property, as that deficit is determined by the City in its approval of the Applicable Land Use Entitlements (based upon a ratio of .5 parking spaces per 1000 square feet of gross building area); or (y) the Agency agrees to pay any fee in excess of the maximum annual fee specified in clause (x) of this sentence. In connection with said consent and cooperation:
Developer will consent to the formation of the district, inclusion of the Property in the district and to an annual fee, tax or assessment on the Property that does not exceed the maximum fee set forth above.
Developer will not protest the formation of the district, inclusion of the Property in the district or an annual fee, tax or assessment that does not exceed the maximum set forth above.
In connection with any election regarding the district or district matters, Developer represents that there are not now nor any intended future registered voters residing on the Property and Developer agrees to the conduct of such election as a property owner election by mailed or hand-delivered ballot.
In connection with the required election with respect to the district or district matters, Developer does hereby agree to waive any and all election procedures, including, but not limited to, the time for election, ballot arguments and ballot analysis, so that the election may be held as quickly as possible; moreover, Developer intends that this Agreement shall operate as the waiver of such election procedures, but does hereby agree to execute a separate waiver should the Agency or City determine it necessary.
Developer agrees to cast a timely ballot in favor of the formation of the district, inclusion of the Property in the district or an annual fee, tax or assessment on the Property that does not exceed the maximum set forth above.
The provisions of this Section 4.12 shall be included in the Grant Deed for each portion of the Property.
For the purposes of this Agreement, a "Transfer" means any voluntary or involuntary sale, transfer, conveyance, assignment or other disposition of fee title to the whole or any part of the Property or any assignment of this Agreement. Prior to issuance of a Certificate of Completion for a Phase, the Developer shall not engage in a Transfer of the portion of the Property for the Phase without the prior written approval of the Agency, which approval may be granted or withheld in the Agency's sole discretion; provided, however, that the Transfers described in to Section 5.2 shall be permitted for purposes of this Agreement.
Notwithstanding the provisions of Section 5.1, the following Transfers are permitted without the approval of the Agency:
A Transfer to an Affiliate of M-D Downtown Sunnyvale LLC of the Building I Site, Building II Site and/or Building III Site and only the rights and obligations under this Agreement with regard to the site or sites transferred.
Preleasing of space in the Improvements for occupancy upon completion of the relevant portion of the Improvements.
Presale of a portion of the Property and Improvements to a user pursuant to agreements whereby the portion of the Property and Improvements will be conveyed to the user upon completion of the relevant portion of the Improvements.
A Transfer of a security interest by way of deed of trust, mortgage or similar instrument in the Property or Improvements as part of the financing for construction, development and leasing of the Improvements.
An assignment of the rights and obligations under this Agreement to a third party in order to facilitate an exchange transaction through which the Developer will acquire the Property.
A transfer approved by the Agency pursuant to Section 5.1 or permitted pursuant to Section 5.2 shall be accomplished pursuant to documentation reasonably approved by the Agency and providing for the transferee to undertake and assume the relevant rights and obligations of the "Developer" under this Agreement, provided, however, that no such documentation shall be required for preleasing space in the Improvements in accordance with Section 5.2 above and provided further that in the case of an assignment pursuant to subsection (v) of Section 5.2, the Agency is satisfied that the documentation provides for Developer (or Affiliate) to acquire the Property and for reassignment to Developer (or Affiliate) of the rights and Obligations under this Agreement. Unless agreed to otherwise by the Agency, a Transfer shall not relieve Developer of its obligations under this Agreement.
The representations and warranties of the Agency in this Section 6.1 and the covenants of the Agency in Section 6.3 are a material inducement for Developer to enter into this Agreement. Developer would not purchase the Property from the Agency without such representations and warranties of the Agency. Such representations and warranties shall survive the Closing on each portion of the Property and shall also be for the benefit of a transferee approved pursuant to Section 5.3. The Agency represents and warrants to Developer as of the date of this Agreement as follows:
The Agency is a public body, corporate and politic, formed and existing under the Community Redevelopment Law. The Agency has full power and authority to enter into this Agreement and to perform this Agreement. The execution, delivery and performance of this Agreement by the Agency have been duly and validly authorized by all necessary action on the part of the Agency and all required consents and approvals have been duly obtained. This Agreement is a legal, valid and binding obligation of the Agency, enforceable against the Agency in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
Except for transient parking uses, there are no persons or entities leasing or occupying the Property or any part thereof and there are no persons or entities who have or at Closing will have any right to occupy the Property or any part thereof after a Closing pursuant to any lease, license, rental agreement, encroachment permit or other document or instrument.
Except for transient parking uses, there are no persons or entities leasing or occupying the Underground Parking Site or the Surface Parking Sites or any part thereof and there are no persons or entities who have or at Closing will have any right to occupy the Underground Parking Site or Surface Parking Sites or any part thereof after a Closing pursuant to any lease, license, rental agreement, encroachment permit or other document, instrument or right which would interfere with the possession, use or occupancy of such property for the purpose of construction of the Parking Improvements as contemplated herein.
The Agency is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and the Income Tax Regulations thereunder.
No California withholding of tax or reporting pursuant to California Revenue and Taxation Code Sections 18805, 18815 and 26131 will be required with respect to the sale of the Property, or any portion thereof, by the Agency.
The representations and warranties of Developer in this Section 6.2 are a material inducement for the Agency to enter into this Agreement. The Agency would not sell the Property or any portion thereof to Developer without such representations and warranties of Developer. Such representations and warranties shall survive the Closings. Developer represents and warrants to the Agency as of the date of this Agreement as follows:
Developer is a limited liability company duly organized and validly existing and in good standing under the laws of the State of California. Developer is duly qualified to do business and is in good standing in the State of California. Developer has full power and authority to enter into this Agreement and to perform this Agreement. The execution, delivery and performance of this Agreement by Developer have been duly and validly authorized by all necessary action on the part of Developer and all required consents and approvals have been duly obtained. This Agreement is a legal, valid and binding obligation of Developer, enforceable against Developer in accordance with its terms, subject to the effect of applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws affecting the rights of creditors generally.
The Agency covenants and agrees with Developer as follows:
Between the date of this Agreement and the last Closing for the Property contemplated herein, neither the Agency nor the City shall execute any lease, license agreement, rental agreement or other similar agreement affecting the Property. Between the date of this Agreement and completion of the last increment of Parking Improvements to be constructed by Developer hereunder, neither the Agency nor the City shall execute any lease, license agreement, rental agreement or other similar agreement affecting the Underground Parking Site and/or Surface Parking Sites.
All representations, warranties and other covenants made by the Agency in this Agreement shall survive the Closings. The Agency shall use its best efforts, in good faith and with diligence, to cause all of the representations and warranties made by the Agency in this Agreement to be true and correct on and as of each Closing.
The Agency shall indemnify and defend Developer against and hold Developer harmless from all claims, demands, liabilities, losses, damages, costs, and expenses, including reasonable attorneys' fees and disbursements, that may be suffered or incurred by Developer if any representation or warranty made by the Agency in this Agreement was untrue or incorrect in any respect when made or that may be caused by any breach by the Agency of any such representation or warranty.
Between the date of this Agreement and the Closing on the relevant portion of the Property, neither the Agency nor the City shall in any manner sell, convey, assign, transfer, encumber or otherwise dispose of the Property or any part thereof or interest herein.
The Agency shall indemnify and defend the Developer against and hold the Developer harmless from all claims, demands, liabilities, losses, damages, costs and expenses in any way arising from, relating to or connected with any release or threatened release of any Hazardous Materials in, on or under the Property, or any portion thereof, or any violation of any laws, ordinances, rules, regulations, codes or orders concerning Hazardous Materials at the Property provided the Hazardous Materials in question were placed on the relevant portion of the Property prior to the Closing and during the time Agency or City owned the relevant portion of the Property.
Developer covenants and agrees with the Agency as follows:
All representations, warranties and other covenants made by Developer in this Agreement shall survive the Closings. Developer shall use its best efforts, in good faith and with diligence, to cause all of the representations and warranties made by Developer in this Agreement to be true and correct on and as of each Closing.
Developer shall indemnify and defend the Agency against and hold the Agency harmless from all claims, demands, liabilities, losses, damages, costs and expenses, including reasonable attorneys' fees and disbursements, that may be suffered or incurred by the Agency if any representation or warranty made by Developer in this Agreement was untrue or incorrect in any respect when made or that may be caused by any breach of Developer of any such representation or warranty.
Developer shall indemnify and defend the Agency against and hold the Agency harmless from all claims, demands, liabilities, losses, damages, costs and expenses in any way arising from, relating to or connected with any release or threatened release of any Hazardous Materials in, on or under the Property, or any portion thereof, or any violation of any laws, ordinances, rules, regulations, codes or orders concerning Hazardous Materials at the Property, provided the Hazardous Materials in question were placed on the relevant portion of the Property after the Closing for that portion of the Property and during the time Developer owns that portion of the Property.
The provisions of this Section 7 shall govern the parties' remedies under this Agreement.
The following events shall constitute a basis for a party to terminate this Agreement:
The Agency, despite good faith efforts, is unable to obtain a City determination permitting the street abandonments contemplated by Section 2.11 within ninety (90) days following the City approval of the Applicable Land Use Entitlements.
The Developer, despite good faith efforts, cannot obtain the Applicable Land Use Entitlements.
The Applicable Land Use Entitlements are conditioned on requirements for development of the Improvements in addition to those specified in this Agreement that make development of the Improvements as contemplated in this Agreement not financially feasible.
The Applicable Land Use Entitlements are conditioned on requirements for development of the Improvements in addition to those specified in this Agreement that are not approved by Developer.
Upon occurrence of any of the above described events, either party may terminate this Agreement by giving written notice to the other party, provided, however, that only the Developer may terminate this Agreement pursuant to clauses (iii) or (iv) above. Developer may terminate this Agreement pursuant to clauses (iii) and (vi) only if the written notice of termination is given within thirty (30) days following the date that all applicable City administrative appeal periods for the Applicable Land Use Entitlements have expired. Upon termination pursuant to this Section 7.2, neither party shall have any rights or obligations under this Agreement except pursuant to Section 7.5 (relating to the deposit, liquidated damages and reimbursements) and Sections 9.5 and 9.9 (relating to indemnities).
The following events shall entitle Developer to take action against the Agency:
The Agency fails to convey the Property or any portion thereof to Developer when Developer is otherwise entitled to such conveyance under this Agreement.
The Agency breaches any other material provision under this Agreement.
Upon occurrence of such an event, the Developer may give the Agency notice of default and an opportunity to cure the default. If, within sixty (60) days following receipt of the notice, the Agency fails to cure the default then the Developer may (i) seek any remedy available at law or equity, (ii) terminate this Agreement provided that no Closing has occurred or (iii) seek the remedies specified in Section 7.5 (return of deposits and reimbursements).
The following events shall entitle the Agency to take action against the Developer:
The Developer fails to complete the Construction Plans for a Phase within the time specified in Section 2.5.
The Developer fails to apply for building and construction permits within the time specified in Section 2.7 or, having applied, fails to obtain those permits.
The Developer fails to submit evidence of financing, and construction contracts within the time specified in Sections 2.8 and 2.9, or, having submitted evidence thereof, fails to obtain Agency approval of that evidence.
The Developer fails to accept conveyance of any portion of the Property within the time specified in this Agreement.
The Developer fails to commence construction of the Improvements in a particular Phase within the time specified in Section 4.1.
The Developer suspends construction of the Improvements in any Phase for a period of more than thirty (30) days.
The Developer fails to complete construction of the Improvements in any Phase within the time specified in Section 4.2.
The Developer breaches any other material provision of this Agreement.
Upon the occurrence of such an event, the Agency may give Developer notice of default and an opportunity to cure the default. If, within sixty (60) days following receipt of the notice, the Developer fails to cure the default, then the Agency may (i) seek any remedy available at law or equity including damages, (ii) terminate this Agreement, or (iii) if applicable, obtain the remedies specified in Sections 7.5 through 7.7, provided, however, in the event of an uncured default occurring prior to a Closing for the portion of the Property to be purchased at the Closing and relating to that portion of the Property, the Agency's damage remedies shall be limited to liquidated damages as specified in Section 7.5 and retention of funds in the Parking Improvement Account as specified in Section 7.6, and further provided that any termination and or other remedy shall be effective and enforceable only with regard to the Site or Sites to which the default relates and any site for which the Closing has not yet occurred.
The Developer has deposited with the Escrow Holder a total deposit of Five Hundred Thousand Dollars ($500,000) (the "Deposit"). If this Agreement is terminated pursuant to Section 7.2 or 7.3 prior to the Closing for the first portion of the Property to be purchased for the first Phase, the Deposit and any interest earned thereon shall be paid to the Developer, provided, however, if the Agreement is terminated pursuant to clause (iv) of Section 7.2, the Deposit and any interest thereon shall be paid to the Agency as compensation to the Agency for its costs incurred under this Agreement. At the Closing for the portion of the Property to be purchased hereunder for the first Phase, one half of the Deposit and one half of any interest earned thereon shall, at the option of Developer, be credited against the purchase price in respect of that Closing and, if not so credited, returned to Developer at the Closing. At the last of the Closings, the balance of the Deposit and interest earned thereon shall, at the option of Developer, be credited against the purchase price in respect of that Closing and, if not so credited, returned to Developer at the Closing.
If this Agreement is terminated pursuant to Section 7.4 prior to the Closing for the portion of the Property included in the first Phase to be purchased hereunder, the Deposit and any interest earned thereon shall be paid to the Agency as liquidated damages. If this Agreement is terminated pursuant to Section 7.4 prior to the Closing of the portion of the Property included in the second or third Phase, the remaining Deposit and any interest earned thereon shall be paid to the Agency as liquidated damages. THE AGENCY AND DEVELOPER AGREE THAT, IF THE PURCHASE AND SALE OF A PORTION OF THE PROPERTY IS NOT COMPLETED AND THIS AGREEMENT TERMINATES BECAUSE DEVELOPER MATERIALLY DEFAULTS UNDER OR MATERIALLY BREACHES THIS AGREEMENT, THE DEPOSIT AND ALL INTEREST THEREON, SHALL BE PAID TO THE AGENCY UPON TERMINATION OF THIS AGREEMENT AND RETAINED BY THE AGENCY AS LIQUIDATED DAMAGES AND AS THE AGENCY'S SOLE REMEDY AT LAW OR IN EQUITY. THE AGENCY AND DEVELOPER AGREE THAT, UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, ACTUAL DAMAGES MAY BE DIFFICULT TO ASCERTAIN AND THE DEPOSIT, AND ALL INTEREST THEREON, IS A REASONABLE ESTIMATE OF THE DAMAGES THAT WILL BE INCURRED BY THE AGENCY IF DEVELOPER MATERIALLY DEFAULTS UNDER OR MATERIALLY BREACHES THIS AGREEMENT AND FAILS TO PURCHASE THE PROPERTY.
AGENCY'S INITIALS:_____ DEVELOPER'S INITIALS:_____
As set forth in Section 3.3, at the Closings for the Property, the purchase price in excess of $3,652,000 shall be deposited to an Agency account with a responsible financial institution approved by the Agency (the "Parking Improvements Account"). The Parking Improvements Account shall be a restricted interest-bearing account which the Agency will use to make disbursements to the Developer in accordance with the provisions of this Section 7.6. If this Agreement is terminated with respect to the Building III Site prior to the Closing for the Building III Site, the funds in the Parking Improvements Account shall be kept by the Agency, it being the understanding of the parties that any funds in that account at that time would constitute the purchase price the Developer previously paid to the Agency for portions of the Property the Agency previously conveyed to Developer. After the Closing for the Building III Site, the funds remaining in the Parking Improvements Account shall be used to pay the costs of constructing the Parking Improvements to be constructed pursuant to this Agreement. Disbursements shall be made on a percentage of completion basis, for example 10% of the funds shall be disbursed when 10% of the costs of constructing the applicable portion of the Parking Improvements have been incurred. No more than $175,000 shall be disbursed from Parking Improvements Accounts for the Surface Parking Improvements. During construction of the Parking Improvements the Developer shall submit to the Agency monthly requests for disbursements accompanied by detailed information as to the work undertaken in the previous month and the cost of that work. The Agency shall disburse funds from the Parking Improvements Account within twenty-one (21) days following receipt of a request for reimbursement less the required retention and any amount the Agency reasonably disputes. If the Agency disputes any requested amount, the Agency shall provide Developer a detailed written explanation of the issue in dispute. The Agency and Developer shall make good faith efforts to resolve the dispute. If the dispute is not resolved, it shall be submitted to the Arbitrator for resolution. The decision of the Arbitrator shall be final and binding on the Agency and Developer. If there is a default with respect to the Building III Site or the Parking Improvements following the Closing for the Building III Site which default is not cured within the time for cure permitted pursuant to Section 7.4 and there are funds remaining in the Parking Improvements Account, the funds and any interest earned thereon remaining in the Parking Improvements Account shall be paid to the Agency.
In the event that following Closing for the Building I Site, there is an uncured default by Developer pursuant to Section 7.4 relating to completion of the Building I Improvements or any related Parking Improvements in accordance with this Agreement, then the Agency shall have the right to reenter and take possession of the Building I Site and all improvements thereon and to revest in the Agency the ownership of the Building I Site.
In the event that following the Closing for the Building II Site, there is an uncured default pursuant to Section 7.4 relating to completion of the Building II Improvements in accordance with this Agreement, then Agency shall have the right to reenter and take possession of the Building II Site and all improvements thereon and revest in the Agency the ownership of the Building II Site.
In the event that following the Closing for the Building III Site, there is an uncured default pursuant to Section 7.4 relating to completion of the Building III Improvements or the Parking Improvements in accordance with this Agreement, then the Agency shall have the right to reenter and take possession of the Building III Site and all improvements thereon and revest in the Agency the ownership and right of possession of the Building III Site.
As a condition to revesting in the Agency of title to a portion of the Property pursuant to subsections (a), (b) or (c) above, the Agency shall pay to Developer the following amount:
The amount of the purchase price paid by Developer for the applicable Building Site being repurchased; plus
An amount equal to the reasonable costs expended by Developer in developing and constructing the improvements on the portion of the Property in question, provided that such costs shall not include costs incurred for development or construction located on the portion of the Property in question by reason of the easements described in subsections (c) or (d) of Section 3.11 above; less
Any amounts necessary to satisfy or discharge any liens or encumbrances on the portion of the Property in question arising from the acts of omissions of Developer.
The right of reverter contained in this Section 7.7 shall be set forth in the Grant Deed for each portion of the Property.
Any rights of the Agency under Section 7.7 above shall not defeat, limit or render invalid any lease, mortgage, deed of trust or any other security interest encumbering the Property or any portion thereof and obtained for the purpose of acquiring the Property or constructing the Improvements.
The words "mortgage" and "deed of trust" as used in this Agreement include all other appropriate modes of financing real estate acquisition, construction, and land development. Mortgages, deeds of trust, and other reasonable methods of security are collectively referred to herein as a "Security Financing Interest."
The holder of any Security Financing Interest is not obligated to construct or complete any improvements or to guarantee such construction or completion; nor shall any covenant or any other provision in conveyances of the Property or any part thereof from the Agency to Developer be construed so to obligate such holder. However, nothing in this Agreement shall be deemed to permit or authorize any such holder to devote the Property or any portion thereof to any uses, or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement.
Whenever the Agency delivers any notice of default to the Developer under this Agreement, the Agency shall at the same time deliver to each holder of record of any Security Financing Interest a copy of such notice. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, but not the obligation, at its option, within ninety (90) days after the receipt of the notice, to cure or remedy or commence to cure or remedy any such default.
All notices, demands, and communications between the Agency and the Developer shall be in writing and shall be sufficiently given if and shall not be deemed given unless dispatched by registered or certified mail, postage prepaid, return receipt requested, delivered personally, or sent by reputable overnight delivery service or sent by facsimile transmission with a copy mailed by first class United States mail to the principal office of the Agency and the Developer as follows:
Agency: Sunnyvale Redevelopment Agency
456 W. Olive Avenue
Sunnyvale, California 94086
Attention: Robert S. LaSala, Executive Director
Telephone: 408-730-7606
Facsimile: 408-730-7696
With a
copy to: City/Agency Attorney
456 W. Olive Avenue
Sunnyvale, California 94086
Attention: Valerie J. Armento
Telephone: 408-730-7464
Facsimile: 408-730-7468
Developer: M-D Downtown Sunnyvale LLC
1068 East Meadow Circle
Palo Alto, California 94303
Attention: James Freitas and John Mozart
Telephone: 650-493-9000
Facsimile: 650-493-9050
With a
copy to: Ellman, Burke, Hoffman & Johnson
One Ecker Square, Suite 200
San Francisco, California 94105
Attention: Jeffrey W. Johnson
Telephone: 415-777-2727
Facsimile: 415-495-7587
Any notice, demand or other communication under this Agreement may be given on behalf of a party by the attorney for such party.
Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected party may from time to time designate by notice as provided in this Section 9.1.
No member, official or employee of the Agency shall make any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership, association or other entity in which he or she is directly or indirectly interested, except as may be required by law.
No member, official, employee or agent of the Agency or City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or successor or on any obligation under the terms of this Agreement.
In addition to specific provisions of this Agreement, performance by either party hereunder (including but not limited to performance pursuant to Sections 4.1, 4.2 and 4.11) shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; legal proceeding (including litigation challenging this Agreement or the Applicable Land Use Entitlements or other permits or approvals for the Improvements) unusually severe weather or soils conditions (including, without limitation, the presence, release, suspected presence or threatened release of Hazardous Materials) which will necessitate delays; prolonged rain; inability to secure necessary labor, materials or tools; delays of any contractor, sub-contractor or supplier; acts of the other party; acts or failure to act of any public or governmental agency or entity including, without limitation, moratoria or other similar actions (other than, with respect to claims of forced delay by the Agency or City, the acts or failure to act of the Agency or the City); or any other causes (other than lack of funds of Developer or Developer's inability to finance any obligation under this Agreement) beyond the reasonable control or without the fault of the party claiming an extension of time to perform. The party claiming such extension shall send written notice of the extension to the other within thirty (30) days from the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the Agency and the Developer.
If any person shall assert any claim against the Agency or the City or their respective officers, employees, agents or contractors on account of injury to person or property alleged to have been caused by reason of the negligent acts of Developer, its agents, employees, representatives, contractors or subcontractors, or with respect to Developer's construction on the Property or the Underground Parking Site and/or Surface Parking Sites, use thereof, or inspection or investigation thereof, the Agency shall notify the Developer who shall defend at the Developer's own expense any suit based upon such claim; and if any judgment or claim against the Agency or City or their respective officers, employees, agents or contractors shall be allowed, the Developer shall pay or satisfy such judgment or claim and pay all reasonable costs and expenses in connection therewith. The foregoing indemnity shall not apply to any claim for injury to person or property arising from the gross negligence or willful misconduct of the Agency or City or their respective officers, employees, agents or contractors. In the event of a Transfer approved by the Agency pursuant to Section 5.1 or 5.3, the transferee's obligations under this Section 9.5 shall extend only to injuries alleges to have been caused by reason of the acts of the transferee, its agents, employees, representatives, contractors and subcontractors.
During the construction of the Improvements, Developer shall maintain comprehensive general liability insurance including UX coverage with limits of not less than $2,000,000 each occurrence and $4,000,000 combined single limit bodily injury and property damage. Such insurance shall name the Agency and the City as additional insureds, as respects the operations of the Developer. During the course of construction of the Parking Improvements, Developer shall maintain comprehensive all risk including builders risk insurance in the amount of the cost of construction of the Parking Improvements which insurance shall name the Agency and City as additional insureds.
All consents, approvals, notices or other communications between the parties required under this Agreement shall be given in writing. Any consents, extensions of times, implementation memos, approvals or actions of the Agency may be given or executed by the Executive Director of the Agency or the governing board of the Agency as determined by the Executive Director of the Agency.
The rights and remedies of the parties are cumulative, and the exercise or failure to exercise one or more of such rights or remedies by either party shall not preclude the exercise by it, at the same time or different times, of any right or remedy for the same default or any other default by the other party.
Each party represents and warrants to the other party that it has not dealt with any investment advisor, real estate broker or finder, or incurred any liability for any commission or fee to any investment advisor, real estate broker or finder, in connection with the sale of the Property to Developer or this Agreement, and each party hereby agrees to indemnify, defend and hold harmless the other party from and against any and all claims, liabilities, losses, damages, costs and expenses (including, without limitation, attorneys' fees) arising out of or incurred in connection a party's breach of its representation and warranty under this Section 9.9.
This Agreement shall be interpreted under and pursuant to the laws of the State of California.
If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability.
In the event any legal action is commenced to interpret or to enforce the terms of this Agreement, to collect damages as a result of any breach thereof, or which arises out of this Agreement, the party prevailing in any such action shall be entitled to recover against the party not prevailing all reasonable attorney's fees and costs incurred in such action.
Except as otherwise provided in this Agreement including Sections 5.2 and 7.4, this Agreement shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest and assigns of each of the parties hereto except that there shall be no transfer of any interest in this Agreement by any of the parties hereto except pursuant to the terms of this Agreement. Any reference in this Agreement to a specifically named party shall be deemed to apply to any successor, heir, administrator, executor or assign of such party who has acquired an interest in compliance with the terms of this Agreement, or under law.
Nothing in this Agreement is intended to or does establish the Agency and Developer as partners, co-venturers, or principal and agent with one another.
In all matters under this Agreement, the parties agree that time is of the essence.
This Agreement consists of the text of the Agreement and the attached Exhibits and constitutes the entire understanding and agreement of the parties with respect to the subject matters of this Agreement. This Agreement supersedes all prior agreements, understandings, offers and negotiations, oral or written, with respect to the development, purchase and sale of the Property including the Prior Agreement. The Prior Agreement is terminated upon execution of this Agreement by the Agency and Developer and neither Agency nor Developer shall have any further rights or obligations under the Prior Agreement except that the indemnity obligations under Section 9.5 of the Prior Agreement shall survive the termination and the deposit made by Developer pursuant to the Prior Agreement shall become part of the Deposit under this Agreement.
The Agency and Developer acknowledge that each party and its counsel have reviewed and revised this Agreement and that the rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any document executed and delivered by either party in connection with the transaction contemplated by this Agreement. The captions in this Agreement are for convenience of reference only and shall not be used to interpret this Agreement. The defined terms in this Agreement shall apply equally to both the singular and the plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.
From and after the date of this Agreement, the Agency and Developer agree to do such things, perform such acts, and make, execute, acknowledge and deliver such documents as may be reasonably necessary or proper and usual to complete the transactions contemplated by this Agreement and to carry out the purpose of this Agreement in accordance with this Agreement.
No waiver of any provision of this Agreement or any breach of this Agreement shall be effective unless such waiver is in writing and signed by the waiver party and any such waiver shall not be deemed a waiver of any other provision of this Agreement or any other or subsequent breach of this Agreement.
This Agreement may not be amended or modified except by a written instrument signed by the Agency and Developer.
This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute one and the same Agreement.
WHEREFORE, the parties have executed this Agreement on the date first noted above.
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ATTEST: APPROVED AS TO FORM: ___________________________________ Agency Counsel |
SUNNYVALE REDEVELOPMENT AGENCY, a public body, corporate and politic By:
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M-D DOWNTOWN SUNNYVALE, LLC, By its managing members: |
Exhibit A
Legal Description of the Agency Parcel
Exhibit B
Legal Description of the Acquisition Parcel
Exhibit C
Legal Description of the Parking Parcel
Exhibit D-1
Current Site Map
Exhibit D-2
Development Sites Map
Exhibit D-3
Surface Parking Sites Map
Exhibit E
Application Plans
Exhibit F
Specific Plan Requirements
Exhibit G
Schedule of Performance
Exhibit H
Form of Grant Deed
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
________________________________
________________________________
________________________________
________________________________
GRANT DEED
THE SUNNYVALE REDEVELOPMENT AGENCY, a public body, corporate and politic, herein called "Grantor", acting to carry out a redevelopment plan under the Community Redevelopment Law of California, hereby grants to ____________________________, a ___________________, herein called "Grantee", the real property situated in the City of Sunnyvale, County of Santa Clara, State of California, more particularly described in Exhibit A attached hereto (the "Site") subject to the conditions, covenants, and restrictions set forth below.
SUBJECT, however, to the matters set forth in the attached Exhibit B incorporated herein.
1. (a) Grantee herein covenants by and for itself, its successors and assigns that:
(i) There shall be no discrimination against or segregation of a person or of a group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, ancestry, or national origin in the sale, lease, sublease, transfer, use occupancy, tenure or enjoyment of the Site nor shall the Grantee or any person claiming under or through the Grantee establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Site. The foregoing covenant shall run with the land; and
(ii) In the sale, lease or occupancy of the Site, Grantee shall not effect or execute any agreement, lease, conveyance of other instrument whereby the Site, or any part thereof, is restricted upon the basis of race, color, creed, religion sex, sexual orientation, marital status, ancestry, or national origin. Grantee, its successors and assigns, shall comply with all state and local laws, in effect from time to time, prohibiting discrimination or segregation by reason of race, color, creed, religion, sex, sexual orientation, marital status, ancestry, or national origin.
2. In the event that following the Closing (as defined in the Disposition and Development Agreement ("DDA") between Grantee and Grantor dated _______________, 2000) for the Site, there is an uncured default pursuant to Section 7.4 and subsection [ ] of Section 7.7 of the DDA relating to completion of the improvements on the Site in accordance with the DDA, then the Grantor shall have the right to reenter and take possession of the Site and all improvements thereon and to revest in the Grantor the ownership of the Site.
As a condition to revesting in the Grantor of title to the Site, the Grantor shall pay to the Grantee the following amount:
[(1) The amount of the purchase price of the Building I Site paid by Grantee pursuant to the DDA; plus]
(2) Except as provided in Subsection (d)(ii) of Section 7.7 of the DDA, an amount equal to the reasonable costs expended by Grantee in developing and the constructing the improvements on the Site; less
on the Site arising from the acts or omissions of Grantee.
parking district pursuant to which an annual fee will be imposed on the Grantee or its successors and assigns as owner of the Property. Grantee for itself, its successors and assigns shall consent to and cooperate in the formation of such district and/or inclusion of the Site in the district provided that (x) the maximum annual fee that may be imposed in the Grantee does not exceed $75 ( adjusted annually beginning July 1, 1999 by the increase in the Consumer Price Index for the U.S. and Selected Areas for Urban Wage Earners and Clerical Workers, all items (1982 – 1984 = 100) for the San Francisco/Oakland Consolidated Metropolitan Statistical Area, as published by the Department of Labor, Bureau of Labor Statistics) for each parking space deficit on the Site, as that deficit is determined by the City in its approval of the Applicable Land Use Entitlements (based upon a ratio of .5 parking spaces per 1000 square feet of gross building area); or (y) the Grantor agrees to pay any fee in excess of the maximum annual fee specified in clause (x) of this sentence. In connection with said consent and cooperation:
G
rantee shall not protest inclusion of the Site in the district, formation of the district, or a maximum fee, tax or assessment on the Site that does not exceed the maximum set forth above.
In connection with any election, Grantee represents that there are not now, nor any intended future, registered voters residing on the Site, and Grantee agrees to the conduct of such election as a property owner election by mailed or hand-delivered ballot.
In connection with the required election with respect to the district or district matters, Grantee does hereby agree to waive any and all election procedures, including, but not limited to, the time for election, ballot arguments and ballot analysis, so that the election may be held as quickly as possible; moreover, Grantee intends that this Grant Deed shall operate as the waiver of such election procedures, but does hereby agree to execute a separate waiver should the Grantor or City of Sunnyvale determine it necessary.
Grantee agrees to cast a timely ballot in favor of formation of the Districts the inclusion of the Site in the district or a maximum fee, tax or assessment on the Site that does not exceed the maximum set forth above.
4. It is intended and agreed that the agreement and covenants provided in Sections 1 through 3 above shall be covenants running with the land. In any event, and without regard to technical classification or designation, legal or otherwise, specifically provided in this Grant Deed, such agreement and covenants shall be, to the fullest extent permitted by law and equity, binding for the benefit and in favor of and enforceable by Grantor, its successors and assigns, and against the Grantee and successor in interest to the Grantee of the Site or any part thereof or any interest therein, and any party in possession or occupancy of any part thereof. It is intended and agreed that the Grantor shall be deemed a beneficiary of the agreements and covenants provided in Sections 1 through 3 above both for and in its own right and also for the purpose of protecting the interests of the community and such other parties, public or private, who benefit from such agreements and covenants. The agreements and covenants provided in Sections 1 through 3 above shall run in favor of Grantor for the entire period during which such agreements and covenants shall be in force and effect, without regard to whether Grantor has at any time been, remains, or is an owner of any land or interest therein to, or in favor of, which such agreements and covenants related. Grantor shall have the right, in the event of any breach of any such agreement or covenant, to exercise all the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant, to which it or other beneficiaries of such agreement or covenant may be entitled, either by operation of the Agreement or by operation of law or in equity.
5. It is intended and agreed that:
(a) The covenants and agreements set forth in Section 1 above shall remain in full force and effect in perpetuity.
(b) The covenants and agreements set forth in Section 2 above shall remain in full force and effect until such time as a Certificate of Completion (as defined in the DDA) has been issued pursuant to the DDA for the Site.
(c) The covenants and agreements set forth in Section 3 above shall remain full force and effect for a period of thirty (30) years from the date of this Grant Deed.
IN WITNESS WHEREOF, the parties hereto have executed this Grant Deed this ___ day of _______________, 199__.
GRANTOR:
SUNNYVALE REDEVELOPMENT AGENCY,
a public body corporate and politic
__________________________________________
By:______________________, its _____________
GRANTEE:
__________________________________________
__________________________________________
__________________________________________
By:__________________, its _________________
Exhibit 1
Legal Description of Site
Exhibit 2
Permitted Exceptions
Exhibit I-1
Title Exceptions for Building I Site
Exhibit I-2
Title Exceptions for Hotel Site
Exhibit I-3
Title Exceptions for Building II Site
Exhibit J
Public Parking Structure
Load Requirements
Exhibit K
Easement Agreement
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
THE SUNNYVALE REDEVELOPMENT AGENCY
and
M-D DOWNTOWN SUNNYVALE, LLC
Section 1: DEFINITIONS AND EXHIBITS *
1.1 Definitions *
1.2 Exhibits *
1.3 Schedule of Performance *
Section 2: DESCRIPTION OF PROPERTY AND PROJECT,
PREDISPOSITION ACTIVITIES *
2.1 Description of the Property/Subdivision *
2.2 Description of Improvements *
2.3 Application for Applicable Land Use Entitlements *
2.4 Agency Review of Plans *
2.5 Construction Plans *
2.6 Design and Construction Plans for the Parking Improvements *
2.7 Building Permits *
2.8 Evidence of Financing *
2.9 Evidence of Construction Contract *
2.10 Inspection of Property *
2.11 Street Abandonment *
Section 3: PROPERTY TRANSACTIONS *
3.1 Sale of Property *
3.2 Opening Escrow *
3.3 Purchase Price *
3.4 Closing Date *
3.5 Possession *
3.6 Condition of Title *
3.7 Condition of Property *
3.8 Costs of Escrow and Closing *
3.9 Agency Conditions Precedent *
3.10 Developer Conditions Precedent *
3.11 Easements *
3.12 Early Closing *
Section 4: CONSTRUCTION OF IMPROVEMENTS *
4.1 Commencement of Construction *
4.2 Completion of the Improvements *
4.3 Construction in Accordance with Plans, Minimizing Disruption *
4.4 Change in Plans *
4.5 Fair Employment Opportunity *