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08-122 Cornish & Carey Commercial, City Attorney Lease, 20410 Town Center Lane THIRD AMENDMENT TAD LEASE This Third Amendment to Lease (the "Third Amendment") is entered into as of this day of November, 2008 by and between Fund VIII Cupertino, LLC, a Delaware limited liability company ("Landlord"), and the City of Cupertino ("Tenant"), with reference to the following recitals. RECITALS: A. On or about February 4, 1999, Town Center Associates ("Town Center") and Tenant entered into a lease agreement (the "Original Lease") forthat certain premises commonly known as Suite 1-D (the "Original Premises"), 10320 South De Anza Boulevard, Cupertino, California (the "Building"). Town Center subsequently sold the Building to CTC Funding, I_LC ("CTC"), and CTC became the landlord under the Original Lease. On or about December 3, 2003, Cl-C and Tenant entered into a First Amendment to Lease Agreement (the "First Amendment"), and pursuant to the First Amendment Tenant's premises was relocated from the Original Premises to Suite 21.0, 20410 Town Center Lane, Cupertino, California (the "Premises"). On or about June 21 , 2004, CTC and Tenant entered into a Second Amendment to Lease Agreement (the "Second Amendment"). The Original Lease as modified by the First Amendment and the Second Amendment is hereinafter referred to as the "LE~ase". B. Landlord previously purchased the Building from CTC and is now the landlord under the Lease. C. The term of the lease will expire on April 30, 2009 (the "Expiration Date"), and Landlord and Tenant desire to extend the term of the Lease for qne (1) year. D. Landlord and Tenant wish to amend the Lease on the terms and conditions set forth below. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1 . Extension of Term. The term of the Lease: is hereby extended for one (1) year, and the term of the Lease shall expire on April 30, 201 O. 2. Minimum Monthly Rent. Prior to May 1 , 2009, Tenant shall continue to pay the minimum monthly rent required by the Lease. From and after May 1 , 2009, Tenant shall pay minimum monthly rent in the amount of $4,275.00 per month. 3. Certain Provisions. Sections 7 and 9 of the First Amendment are hereby deleted in their entirety and shall be of no further force or effect. 4. Conflict. If there is a conflict between the 1:erms and conditions of this Third Amendment and the terms and conditions of the Lease, the terms and conditions of this Third Amendment shall control. Except as modified by this Third Amendment, the terms 2ind conditions of the Lease shall remain in full force and effect. Capitalized terms included in this Third Amendment shall have the same meaning as capitalized terms in the Lease unless otherwise defined herein. Tenant hereby acknowledges and agrees that the Lease is in full force and effect, Landlord is not currently in default under the Lease, and, to the best of Tenant's knowledge, no event has occurred which, with the giving of notice or the passage of time, or both, would ripen into Landlord's default under the Lease. 5. Authority. The persons executing this Third Amendment on behalf of the parties hereto represent and warrant that they have the authority to execute this Third Amendment on behalf of said parties and that said parties have authority to enter into this Third Amendment. 6. Brokers. Tenant and Landlord each repn~sent and warrant to the other that neither has had any dealings or entered into any agreements with any person, entity, broker or finder other than Cornish & Carey Commercial, who has exclusively represented Landlord, in connection with the negotiation of this Third Amendment, and no other broker, person, or entity is entitled to any commission or finder's fee in connection with the negotiation of this Third Amendment, and Tenant and Landlord each agree to indemnify, defend and hold the other harmless from and against any claims, damages, costs, expenses, attorneys' fees or liability for compensation or charges which may be clsiimed by any such unnamed broker, finder or other similar party by reason of any dealings, actions or agreements of the indemnifying party. 7. Confidentiality. Tenant acknowledges anti agrees that the terms of this Third Amendment are confidential and constitute proprietary information of Landlord. Disclosure of the terms hereof could adversely affect the ability of Landlord to negotiate other leases with respect to the property and may impair Landlord's relationship with other tenants of the property. Tenant agrees that it and its partners, officers, directors, employees, brokers, and attorneys, if any, shall not disclose the terms and conditions of this Third Amendment to any other person or entity without the prior written consent of Landlord which may be given or withheld by Landlord, in Landlord's sole discretion. It is understood and agreed that damages alone would be an inadequate remedy for the breach of this provision by Tenant, and Landlord shall also have the right to seek specific performance of this provision and to seek injunctive relief to prevent its breach or continued breach. 8. Counterparts. This Third Amendment m:ay be executed in counterparts. Each counterpart shall be deemed an original, and all counterparts shall bey deemed the same instrument with the same effect as if all parties hereto had signed the same signature page. 9. Delivery of Amendment. Preparation of this Third Amendment by Landlord or Landlord's agent and submission of same to Tenant shall not be deemed an offer by Landlord to enter into this Third Amendment. This Third Amendment shall become binding upon Landlord only when fully executed by all parties and when Landlord has delivered a fully execute~y original of this Third Amendment to Tenant. The delivery of this Third Amendment to Tenant shall not constitute an agreement by Landlord to negotiate in good faith, and Landlord expressly disclaims any legal obligation to negotiate in good faith. 1 O. Notices. All notices provided by Tenant to Landlord pursuant to the Lease shall be sent to the following addresses: Fund VIII Cupertino, LLC c/o TA Associates Realty 1301 Dove Street, Suite 860 Newport Beach, California 92660 Attention: Asset Manager/Civic Park Office Center and Fund VIII Cupertino, LLC c/o TA Associates Realty 28 State Street, Tenth Floor Boston, Massachusetts 02109 Attention: Asset Manager/Civic Park Office Center with a copy to: Woodmont Real Estate Services 1050 Ralston Avenue Belmont, California 94002 Attention: Property Manager/Civic Park Office Cc;nter 2 IN WITNESS WHEREOF, the parties hereby execute this Third Amendment as of the date first written above. LANDLORD: Fund VIII Cupertino, LLC, a Delaware limited liability company By: The Realty Associates Fund VIII, L. P., a Delaware limited partnership, its sole member By: Realty Associates Fund VIII LLC, a Massachusetts limited liability compan~r, its general partner By: Realty Associates Advisors LLC, a Delaware limited liability company, its Manager By: Realty Associates Advisors Trust, a Massachusetts business trust, its Manager By: Officer TENANT': City of Cu o X411 t'~ lA~ . ~ YIQ~fl (print name) Its: ~?'~"U M ~Yl ~a e~~ (print titl 3 City Hall 10300 Torre Avenue Cupertino, CA 95014-3255 Telephone: (408) 777-3223 FAX: (408) 777-3366 Web Site: www-cupertino.org CUPERTINO CTI'Y CLERK'S OFFICE December 8, 2008 Cornish & Carey Commercial C/O Anita 20370 Town Center Lane Suite 245 Cupertino, CA 9507 4 Enclosed for your files is a fully executed copy of the agreement with the City of Cupertino. The City of Cupertino has retained the second signed copy for our files. If you have any questions or need additional inf~~rmation, please contact the City Clerk's Office at 777-3223. Sincerely, Julia Kinst Administrative Clerk WOODMONT Real Estate Services February 18, 2009 Ms. Dorie Barras City of Cupertino 20410 Town Center Lane, Suite 210 Cupertino, CA 95014 Re: Third Amendment to Lease Dear Ms. Barras: Enclosed please find one (1) copy of the Third Amendment to Lease for the City of Cupertino. If you have any questions or need further information, please do not hesitate to give me a call. Sincerely, Woodmont Real Estate Services r e _ - nits' ssell - Prope y Manager 20370 Town Center Lane, Suite 245 Cupertino, California 95014 408-973-0783 Fax:408-973-9874 THIRD AMENDMENT TO LEASE This Third Amendment to Lease (the "Third Amendment") is entered into as of this day of November, 2008 by and between Fund VIII Cupertino, LLC, a Delaware limited liability company ("Landlord"), and the City ofCupertino ("Tenant"), with reference to the following recitals. RECITALS: A. On or about February 4, 1999, Town Center Associates ("Town Center") and Tenant entered -into a lease agreement (the "Original Lease") for that ~:ertain premises commonly known as Suite 1-D (the "Original Premises"), 10320 South De Anza Boulevard, Cupertino, California (the "Building"). Town Center subsequently sold the Building to CTC Funding, LLC ("CTC"), and CTC became the landlord under the Original Lease. On or about December 3, 2003, c~TC and Tenant entered into a First Amendment to Lease Agreement (the "First Amendment"), and pursuant to the First Amendment Tenant's premises was relocated from the Original Premises to Suite 21.0, 20410 Town Center Lane, Cupertino, California (the "Premises"). On or about June 21, 2004, CTC and Tenant entered into a Second Amendment to Lease Agreement (the "Second Amendment"). The Original Lease as modified by the First Amendment and the Second Amendment is hereinafter referred to as the "'Lease". B. Landlord previously purchased the Building from CTC and is now the landlord under the Lease. C. The term of the lease will expire on Aprill 30, 2009 (the "Expiration Date"), and Landlord and Tenant desire to extend the term. of the Lease for one (1) year. D. Landlord and Tenant wish to amend thE: Lease on the terms and conditions set forth below. NOW, THEREFORE, for good and valuable o~nsideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Extension of Term. The term of the Leese is hereby extended for one (1) year, and the term of the Lease shall expire on April 30, 2010: 2. Minimum Monthly Rent. Prior to May 1, 2009, Tenant shall continue to pay the minimum monthly rent_required by the Lease. From and after May 1, 209, Tenant shall pay minimum monthly rent in the amount of $4,275.00 per month. 3. Certain Provisions. Sections 7 and 9 of the First Amendment are hereby deleted in their entirety and shall be of no further force or effect. 4. Conflict. If there is a conflict between the terms and conditions of this Third Amendment and the terms and conditions of the Lease, the terms an~1 conditions of this Third Amendment shall control. Except as modified by this Third Amendment, the term; and conditions of the Lease shall remain in full force and effect. Capitalized terms included in this Third Amendment shall have the same meaning as capitalized terms in the Lease unless otherwise defined herein. Tenant hereby acknowledges and agrees that the Lease is in full force and effect, Landlord is not currently in default under the Lease, and, to the best of Tenant's knowledge, no event has occurred which, with the giving of notice or the passage of time, or both, would ripen into Landlord's default under the Lease. 5. Authori The persons executing this; Third Amendment on behalf of the parties hereto represent and warrant that they have the authority to execute this Third Amendment on behalf of said parties and that said parties have authority to enter into this Third Amendment. 6. Brokers. Tenant and Landlord each relxesent and warrant to the other that neither has had any dealings or entered into any agreements with any person, entity, broker or finder other than Cornish & Carey Commercial, who has exclusively represented Landlord, in connection with the negotiation of this Third Amendment, and no other broker, person, or entity is entitled to any commission or finder's fee in connection with the negotiation of this Third Amendment, and Tenant and Landlord each agree to indemnify, defend and hold the other harmless from and against any claims, damages, costs, expenses, attorneys' fees or liability for compensation or charges which may be claimed by any such unnamed broker, finder or other similar party by reason of any dealings, actions or agreements of the indemnifying party. 7. Confidentiality. Tenant acknowledges and agrees that the terms of this Third Amendment are confidential and constitute proprietary information o~f Landlord. Disclosure of the terms hereof could adversely affect the ability of Landlord to negotiate othE;r leases with respect to the property and may impair Landlord's relationship with other tenants of the property. Tenant agrees that it and its partners, officers, directors, employees, brokers, and attorneys, if any, shall not disclose the terms and conditions of this Third Amendment to any other person or entity without the prior written consent. of Landlord which may be given or withheld by Landlord, in Landlord's sole discretion. It i:~ understood and agreed that damages alone would bean inadequate remedy for the breach of this provision by Tenant, and Landlord shall also have the right to seek specific performance of this provision and to seek injunctive relief to prevent its breach or continued breach. 8. Counterparts. This Third Amendment may be executed in counterparts. Each counterpart shall be deemed an original, and all counterparts shall k~e deemed the same instrument with the same effect as if all parties hereto had signed the same signature ~~age. 9. Delivery of Amendment. Preparation of this Third Amendment by Landlord or Landlord's agent and submission of same to Tenant shall not be teemed an offer by Landlord to enter into this Third Amendment. This Third Amendment shall become binding upon Landlord only when fully executed by all parties and when Landlord has delivered a fully executed original of this Third Amendment to Tenant. The delivery of this Third Amendment to Tenant shall not c:onstiiute an agreement by Landlord to negotiate in good faith, and Landlord expressly disclaims any legal obligation to negotiate in good faith. 10. Notices. All notices provided by Tenant i:o Landlord pursuant to the Lease shall be sent to the following addresses: Fund VIII Cupertino, LLC c/o TA Associates Realty 1301 Dove Street, Suite 860 Newport Beach, California 92660 Attention: Asset Manager/Civic Park Office Center and Fund VIII Cupertino, LLC c/o TA Associates Realty 28 State Street, Tenth Floor Boston, Massachusetts 02109 Attention: Asset Manager/Civic Park Office Center with a copy to: Woodmont Real Estate Services 1050 Ralston Avenue ' Belmont, California 94002 Attention: Property Manager/Civic Park Office Center 2 IN WITNESS WHEREOF, the parties hereby execute this Third Amendment as of the date first written above. LANDLORD: Fund VIII Cupertino, LLC, a Delaware limited liability company By: The Realty Associates Fund VIII, L.P., a Delaware limited partnership, its sole member By: Realty Associates Fund V1il LLC, a Massachusetts limited liability company, its general partner By: Realty Associates Advisors LLC, a Delaware limited liability company, its Manager By: Realty ciates Advisers Tr , Ma aches siness~ tr ,its an er By: O er scoff W. Amling Regional Dlrecto~r TENANT": City of Cu o 12,~,oY~ 6y: 'Da.cl . #~C no~.bfl (print name) Its: ~;'~'ta_ ~a.Yle~.a£'~ (print titl 3