11-020 Tower Radio License Agreement, Prometheus Real Estate Group, Cupertino City Center BuildingFIRST AMENDMENT TO THE LICENSE AGREEMENT BETWEEN CUPERTINO
CITY CENTER BUILDINGS AND THE CITY OF CUPERTINO TO EXTEND THE
LICENSE FOR COMMUNICATIONS EQUIPMENT
This FIRST AMENDMENT (" Amendment Agreement") is made and entered
t
into as of the f of September, 2016 ("Effective Date") by and between CUPERTINO
CITY CENTER BUILDINGS, a California limited partnership ("Licensor"), and the
CITY OF CUPERTINO, a municipal corporation ("Licensee").
RECITALS
1. Licensor is the owner of the real property located at 20400 Stevens Creek
Boulevard, Cupertino, California (the "Project") including, without limitation the
building located thereon ("the Building").
2. Licensor and Licensee desire to amend their original LICENSE AGREEMENT,
dated February 21, 2011 (" Agreement") in order to extend it for an additional
five (5) years with the same terms and conditions as the original Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Paragraph 1 (a) of the Agreement "Term" shall have a last sentence added to it to
read as follows:
The term of this Agreement shall be extended from the original License
Termination Date of February 21, 2016 to the new License Termination Date of
February 21, 2021 upon the same terms and conditions of the original
Agreement.
2. The Rent, listed under paragraph 2 of the Agreement shall remain a monthly rent
in the amount of Fifty Dollars ($50.00), which may be paid in one annual
payment of $600.00 payable in advance.
3. Paragraph 8 of the Agreement, regarding notice is hereby updated as follows:
Licensee:
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Attn: Grace Schmidt, City Clerk
Page 1
Telephone: 408-777-3200
With a concurrent copy to:
City of Cupertino
Department of Public Works
Attn: Roger Lee
10300 Torre Avenue
Cupertino, CA 95014
Licensor:
c/o Prometheus Real Estate Group, Inc.
1900 South Norfolk Street, Suite 150
San Mateo, CA 94403
Attn: CFO
Telephone No.: (650) 931-3400
Fax No.: (650) 931-3400
With a concurrent copy to:
c/o Prometheus Real Estate Group, Inc.
1900 South Norfolk Street, Suite 150
San Mateo, CA 94403
Attn: SVP, Portfolio Management
Telephone No.: (650) 931-3400
Fax No.: (650) 931-3400
And with a concurrent copy to:
Project Management Office
20400 Stevens Creek Boulevard, Suite 130
Cupertino, CA 95014
Attn: Property Manager
Telephone No.: (408) 873-0121
Fax No.: (408) 873-0122
All other terms and conditions of the Agreement are unchanged and remain in force
and effect. This First Amendment to the Agreement shall be effective as of the Effective
Date above.
LICENSOR:
Page 2
CUPERTINO CITY CENTER BUILDINGS, a California limited partnership
By: PROM XX, INC.,
a California corporation, its general partner
By:
PROMETHEUS REAL ESTATE GROUP, INC.,
a California corporation,
Agent for Licensor
By: <{/ =--z-._~ ~ :::::::::: ..
Title: 5-t:? //4/ ~ ~~
LICENSEE:
;~7(/;::;_ino (Vl/
David Brandt
City Manager
Approved as to form:
·vc L -By: ~,,-b~Ll~----
Randolph Horn
City Attorney
Am endment to A greem ent for C upertin o CARES ARK Net 7-6-16
Page 3
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement ") is made and entered into as of the el . • s
day of
2014 (the "Effective Date "), by and between CUPERTINO CITY CENTER BUILDINGS, a
California mited partnership ( "Licensor "), and the CITY CF CUPERTINO, a municipal corporation ( "Licensee ").
RECITALS:
A.Licensor is the owner of the real property located at 20400 Stevens Creek Boulevard, Cupertino,
California (the "Project "), including, without limitation, the building located thereon (the "Building ").
B.Licensor and Licensee desire to enter into this Agreement to provide for the grant by Licensor to
Licensee of a revocable, non - exclusive temporary license for the use of a portion of the Building roof for the limited
purpose of installation, operation, maintenance, repair and removal of the "Communications Equipment" (as
hereinafter defined), all as more particularly provided in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1.a)Licensee is hereby granted a non - exclusive license (the "License ") during the period (the
Term ") commencing on the Effective Date and expiring on the date that is five (5) years after the Effective Date
the "License Termination Date "), at Licensee's sole cost and expense, to install within an area on the roof of the
Building reasonably designated by Licensor, for Licensee's own use, such emergency communication equipment
the "Communications Equipment "), which Communications Equipment shall be of such size, weight and quantity,
and at such location as is reasonably approved by Licensor and Licensor's structural engineer. Licensee shall
reimburse Licensor for the reasonable fees of Licensor's structural engineer incurred in evaluating Licensee's plans
for installation of the Communications Equipment and any modifications thereto, within thirty (30) days following
submission by Licensor to Licensee of invoices therefor. This Agreement may be extended in increments of five (5)
years upon mutually acceptable terms and conditions and w:.th the mutual consent of the parties, all as determined in
the parties' respective sole and absolute discretion.
b)The installation, maintenance, repair, operation and removal (as hereinafter provided) of
such Communications Equipment shall be completed in a good and workmanlike manner and in conformity with (i)
plans and specifications therefor (the "Communications Equipment Plans ") showing matters including, without
limitation, equipment size, location, weight and composition, and Licensee's plan for assembly, installation,
maintenance and removal of such equipment, which Communications Equipment Plans shall be subject to
Licensor's prior written approval, which approval shall not be unreasonably withheld or delayed, and (ii) all
applicable federal, state and local governmental laws, rubs, regulations, ordinances, requirements and/or orders
collectively, "Applicable Laws "), including, without limitation, Licensee's obtaining and keeping in force any
necessary governmental permits or approvals for the operation of such Communications Equipment.
Notwithstanding anything to the contrary contained herein, the supporting structures for such Communications
Equipment shall not penetrate the Building roof. At Licensor's option, all work of installation, maintenance, repair
and other work affecting the roof in connection with the Communications Equipment shall be performed, at
Licensee's sole cost and expense, by Licensor or by Licenser's designated roof contractor. Licensee shall, at its sole
cost and expense, install screening of such Communications Equipment to prevent visibility from the street level, as
Licensor may reasonably require, and any other screening of such Communications Equipment as may be required
by Applicable Laws. Licensee shall not be permitted to access the roof except when previously scheduled with
Licensor or upon receipt of prior written approval from Licensor (which approval shall not be unreasonably
withheld or delayed).
c)The Communications Equipment shall not disturb or interfere with any other
communications equipment and/or uses which are located on the Building roof or elsewhere within the Project from
time to time, and, if applicable, the Communications Equipment shall comply with all non - interference rules of the
Federal Communications Commission. Anything to the contrary contained herein notwithstanding, if, during the
Term, Licensor, in its reasonable judgment, believes that any of the Communications Equipment poses a human
health or environmental hazard, and such situation cannot be remediated or has not been remediated within five (5)
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days after Licensee has been notified thereof, then Licensee shall immediately cease all operations of the applicable
Communications Equipment until such situation is remedied.
d) Licensee shall be solely responsible for any liability, cost, claim, expense (including,
without limitation, reasonable attorneys' fees) and/or damage to the Building and/or the Project resulting from
Licensee's installation, maintenance, operation, use, presence or removal of such Communications Equipment.
Licensee shall, at all times during the Term, pay to Licensor within thirty (30) days following demand therefor
accompanied by reasonable evidence of such charges, all increased real estate taxes, insurance premiums or other
charges which may be incurred by or charged to Licensor as a result of the installation, operation, maintenance
and/or removal of the Communications Equipment. Licensee shall pay all costs and expenses of operation of the
Communications Equipment, including, without limitation, my necessary utility services therefor. Licensee shall be
entirely responsible for all maintenance of and repairs to the Communications Equipment so that at all times the
Communications Equipment is in good condition and repair
e)Licensee shall to the fullest extent permitted by law, indemnify, defend with counsel
reasonably acceptable to Licensor, and hold harmless Licensor and its employees, agents, partners, members,
officers, directors and shareholders from and against any and all claims, damages, losses, liabilities, actions,
penalties, judgments, and costs and/or expenses (including, without limitation, attorney's fees and costs)
collectively, "Claims "), including, without limitation, Claims for property damage or personal injury (including,
without limitation, death), arising out of (i) Licensee's use of the Project or any part thereof, or any act or negligence
or other thing done in or about the Project by Licensee or Licensee's employees, agents, contractors or invitees
including, without limitation, the installation, use, operation, maintenance, replacement and/or removal of the
Communications Equipment or any portion thereof), or (ii) any breach or default in the performance of any
obligation to be performed by Licensee under the terms of this Agreement. In addition, if by reason of any act or
omission of Licensee or Licensee's employees, agents, contractors or invitees, Licensor is made a party defendant to
any litigation, Licensee shall indemnify, hold harmless and defend with counsel acceptable to Licensor from and
against any and all Claims incurred by (or threatened against) Licensor as a party defendant, including without
limitation all damages, costs and expenses ( including, without limitation attorney's fees and expenses). The
obligations of Licensee under this subsection (e) shall survive the termination of this Agreement and shall continue
in effect until any or all Claims indemnified against are fully and finally barred by the applicable statue of
limitations.
f)Licensee as a material part of the consideration to Licensor hereby assumes all risk of
damage or loss to property or injury or death to person in, upon or about all portion of the Project from any cause,
except to the extent caused by the gross negligence or willful misconduct of Licensor and not covered by the
insurance required to be maintained by Licensee pursuant to this Agreement (or which would not have been so
covered had Licensee maintained the insurance required to be maintained by Licensee pursuant to this Agreement).
Except to the extent caused by the gross negligence or willful misconduct of Licensor and not covered by the
insurance required to be maintained by Licensee pursuant to this Agreement (r which would not have been so
covered had Licensee maintained the insurance required to be maintained by Licensee pursuant to this Agreement),
Licensor shall not be liable for any damage or loss to property occurring on or about the Project nor for loss or
damage to any property by theft or otherwise, nor for any injury or death or damage of loss to persons or property
resulting from any accident, casualty or conditions occurring in or about any portion of the Project, or to any
equipment, appliances or fixtures therein, or from any other cause whatsoever. Licensee shall give prompt written
notice to Licensor in case of fire or accidents on the Project. The obligations of Licensee under this subsection (f)
shall survive the termination of this Agreement and shall continue in effect until any or all Claims indemnified
against are fully and finally barred by the applicable statue of limitations.
g)Licensor acknowledges that Licensee is self - insured. Licensee shall, during the term of
this Agreement, maintain the equivalent of a policy of commercial general liability insurance, including the broad
form endorsement, insuring against any liability arising out of the exercise of the rights granted to Licensee under
the License. Such insurance shall provide combined single limit liability coverage of not less than Two Million
Dollars ($2,000,000.00) per occurrence for bodily injury or death, personal injury and property damage. Such
insurance shall include Licensor and the beneficiary under any deed of trust encumbering the Project each as an
additional insured, and shall provide that each such additional insured may recover for any loss suffered by it by
reason of the negligence of Licensee or Licensee's employees, agents, contractors or invitees. All such insurance
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pa- 1412004 Vi I
shall specifically insure Licensee's performance of the indemnity and hold harmless agreements contained in
subsection (e) above although Licensee's obligations pursuant to subsection (e) above shall not be limited to the
amount of any insurance required of or carried by Licensee under this Agreement and Licensee is responsible for
ensuring that the amount of liability insurance carried by Licensee is sufficient for Licensee's purposes. Licensee
may carry said insurance under blanket policy so long as the coverage afforded thereunder is not diminished
thereby. Any insurance required to be maintained by Licensee hereunder shall be in companies rated A; X or better
in the most recently published "Bests Insurance Guides." Prior to installation of any Communications Equipment,
Licensee shall deliver to Licensor copies of the policies of insurance required to be kept by Licensee hereunder, or
certificates evidencing the existence and amount of such insurance, with evidence satisfactory to Licensor of
payment of premiums. No policy shall be cancelable or ;ubject to reduction of coverage except after thirty (30)
days prior written notice to Licensor.
h)Licensee shall keep the Project free from any and all mechanics, materialmen's and other
liens, and claims thereof, arising out of the use of the Project. Licensor shall have the right, at all times, to post and
keep posted on the Project, any notices permitted or required by law, or which Licensor shall deem proper, for the
protection of Licensor, from mechanics and materialmen' s liens, including without a limitation a notice of non -
responsibility. Should any claims of lien relating to use of the Project by Licensee be filed against, or any action be
commenced affecting the Project or Licensor, Licensee shall give Licensor notice of such lien or action within three
3) days after it receives notice of the filing of the lien or th.. commencement of action. If Licensee does not, within
ten (10) days following the imposition of any such lien, cause such lien to be released of record by payment or
posting of a proper bond, then Licensor shall have, in additi on to all other remedies provided herein and by law, the
right, but not the obligation, to cause the same to be released by such means as it shall deem proper, including by
payment of the claim giving rise to such lien or by posting a proper bond, or by requiring Licensee to post for
Licensor's benefit a bond, surety, or cash amount equal to one hundred fifty percent (150 %) of the amount of lien
and sufficient to release the Project from the lien. All sum. paid by Licensor pursuant to this subsection (h) and all
expenses incurred by it in connection therewith including attorney's fees and costs shall be payable to Licensor by
Licensee on demand.
e)Upon the expiration of the Term. Licensee shall remove the Communications Equipment
and restore that portion of the Building and Project, including, without limitation, the Building roof, affected by the
Communications Equipment, to the same condition as existed prior to such installation, subject to reasonable wear
and tear, all at Licensee's sole cost and expense. In the event Licensee fails to so remove the Communications
Equipment and restore the affected portions of the Building by the expiration of the Term, Licensor may, at its
option and at Licensee's sole cost and expense, remove and store and/or dispose of the Communications Equipment
and restore the affected portions of the Building and Project, in which event all amounts paid or incurred by
Licensor in connection therewith shall be paid by Licensee to Licensor within ten (10) days following Licensor's
submission to Licensee of reasonable evidence of the amour.t of such costs.
f)Licensor makes no representation or warranty regarding the feasibility of the installation,
operation, maintenance or removal of the Communications Equipment. In no event shall the installation, operation,
maintenance or removal of the Communications Equipment in any manner adversely affect any warranty in effect
with respect to any portion of the Project. No use of the Building roof or other portions of the Project may be made
pursuant to this Agreement other than as expressly stated in this Agreem w.4_ AA 0 . 7 ., E
3 0 : . pc_ wJ a...a512.In consideration of the grant of the License censee hal a monthly rent in the amount of r;Fifty Dollars ($50.00) ( "Rent "), which amount shall be able monthly in advance on or before the first day of
each calendar month during the Term. Rent for any nod during the Term which is for less than one (1) month
shall be prorated based upon a thirty (30) day month. ent and all other amounts owing to Licensor pursuant to this
shall be paid to Licensor in lawful money of the United Stales of America which shall be legal tender at the time of
payment, at the office of the Project, or to such other person or at such other place as Licensor may from time to
time designate in writing.
3.This Agreement shall automatically be subject and subordinate to all ground or underlying leases
which now exist or may hereafter be executed affecting any portion of the Project and to the lien of any mortgages
or deeds of trust (including all advances thereunder, renewals, replacements, modifications, supplements,
consolidations, and extensions thereof) in any amount or amounts whatsoever now or hereafter placed on or against
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any portion of the Project, or on or against Licensor's interest or estate therein, or on or against any ground or
underlying lease, without the necessity of the execution and delivery of any further instruments on the part of
Licensee to effectuate such subordination. Licensee covenants and agrees to execute and deliver upon demand and
without charge therefor, such further instruments evidencing the subordination of this Agreement to such ground or
underlying leases and/or to the lien of any such mortgages or deeds of trusts as may be required by Licensor or a
lender making a loan affecting the Project; provided that such mortgagee or beneficiary under such mortgage or
deed of trust or lessor under such ground or underlying lease agrees in writing that so long as Lessee is not in default
under this Agreement, this Agreement shall not be terminated in the event of any foreclosure or termination of any
ground or underlying lease. If any mortgagee, beneficiary or lessor elects to have this Agreement prior to the lien of
its mortgage, deed of trust or lease, and shall give written notice thereof to Licensee, this Agreement shall be
deemed prior to such mortgage, deed of trust or lease, whether this Agreement is dated prior or subsequent to the
date of said mortgage, deed of trust, or lease or the date of the recording thereof. If any proceedings are brought to
terminate any ground or underlying leases or for foreclosure, or upon the exercise of the power of sale, under any
mortgage or deed of trust covering any portion of the Project, Licensee shall attorn to the lessor or purchaser upon
any such termination, foreclosure or sale and recognize such lessor or purchaser as the Licensor under this
Agreement. So long as Licensee is not in default under this Agreement and attorns as required above, this
Agreement shall remain in full force and effect for the fu :1 term hereof after any such termination, foreclosure or
sale.
4.Upon a sale or conveyance by Licensor of Licensor's interest in the Building, other than a transfer
for security purposes only, the Licensor herein named (and in case of any subsequent transfers or conveyances, the
then grantor) shall be relieved, from and after the date of such transfer, of all obligations and liabilities accruing
thereafter on the part of Licensor. Following such sale o:- conveyance by Licensor or the then grantor, Licensee
agrees to look solely to the responsibility of the successor -in- interest of Licensor in and to this Agreement. This
Agreement shall not be affected by any such sale or conveyance and Licensor agrees to attorn to the purchaser or
assignee.
5.In the event any party to this Agreement shall institute any action or proceeding against the other
party relating to this Agreement, the unsuccessful party in such action or proceeding shall reimburse the successful
party for its disbursements incurred in connection therewith and for its reasonable attorneys' fees and costs as fixed
by the court. In addition to the foregoing award of attorneys' fees to the successful party, the successful party in any
lawsuit on this Agreement shall be entitled to its attorneys' fees and costs incurred in any post judgment proceedings
to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this
Agreement into any judgment on this Agreement.
6.Licensee agrees that this Agreement shall not be assignable and Licensee shall not assign this
Agreement or grant a license or sublicense regarding the Project or any portion thereof without the prior written
consent of Licensor which consent may be granted or withheld in Licensor's sole and absolute discretion.
7.The occurrence of any of the following shall constitute an "Event of Default" by Licensee (i)
failure to pay the Rent or any other sum due by Licensee under this Agreement within five (5) days of the due date;
and (ii) failure to comply with any other provision of this Agreement if such failure to comply is not cured within
ten (10) days after delivery of written notice by Licensor to Licensee (however, Licensee shall not be in default
under subclause (ii) above if such failure cannot be cured within such ten (10) day period, but Licensee promptly
commences to cure such noncompliance and diligently procaeds in good faith to cure same after receiving written
notice of such default). If an Event of Default has occurred, Licensor may (with or without further notice) terminate
Licensee's right of possession of the Premises. Any such notice shall not be considered an election to terminate this
Agreement unless written notice of such intention to terminate is given to Licensee by Licensor. Repossession may
be by voluntary agreement or by eviction. Commencement of an eviction lawsuit shall not preclude the exercise by
Licensor of any other remedies available under this Agreement, at law or in equity. Licensor may terminate this
Agreement (as contrasted to termination of possession rights only) upon an Event of Default by Licensee or at any
time after Licensor's lawful reentry or repossession following an Event of Default by Licensee, by Licensor's giving
written notice of termination pursuant to this Agreement to Licensee. In addition to other remedies, Licensor may
recover actual damages incurred.
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Aj
8.All notices, consents and demands which may or are to be required or permitted to be given by
either party to the other hereunder shall be in writing. All notices, consents and demands by one party to the other
shall be personally delivered, sent by overnight courier providing receipt of delivery (such as Federal Express) or
sent by United States Certified Mail, postage prepaid return receipt requested, addressed to the address specified
below, or to such other person or place as a party may from time to time designate in a notice to the other party
pursuant to this Section. Notices sent by overnight courier shall be deemed delivered upon the next business day
following deposit with such overnight courier for next business day delivery. Mailed notices shall be deemed
delivered two (2) business days after deposit in the United States mail as required by this Section. Unless and until
changed pursuant hereto, each party's address for receipt of notices is as follows:
If to Licensee:If to Licensor:
City of Cupertino c/o Prometheus Real Estate Group, Inc.
10300 Torre Avenue 1900 South Norfolk Street, Suite 150
Cupertino, CA 95014 San Mateo, CA 94403
Attn: Kim Smith, City Clerk Attn: Executive Vice President
Telephone No.: 408 - 777 -3200 Telephone No.: (650) 931 -3400
Fax No.: (650) 931 -3600
with a concurrent copy to:with a concurrent copy to:
City of Cupertino o Prometheus Real Estate Group, Inc.
Dept of Public Works 1900 South Norfolk Street, Suite 150
Attn: Roger Lee San Mateo, CA 94403
10300 Torre Avenue Attn: Brett Miles
Cupertino, CA 95014 Telephone No.: (650) 931 -3413
Fax No.: (650) 931 -3613
and with a concurrent copy to the
Project Management Office at:
20400 Stevens Creek Boulevard, Suite 245
Cupertino, California 95014
Attn: Property Manager
Telephone No.: (408) 873 -0121
Fax No.: (408) 873 -0122
9.Any provision of this Agreement which p :-oyes to be invalid, void or illegal shall in no way affect,
impair or invalidate any other provision of this Agreement and all such other provisions shall remain in full force
and effect.
10. This Agreement shall be governed by the laws of the state of California, with jurisdiction and
venue to be in the county where the Project is located.
11. This Agreement may be executed in any number of counterparts, each of which shall be deemed to
be an original, but any number of which shall be deemed to De one and the same instrument.
Signatures on following page]
pa- 1412004
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the date first written
above.
LICENSOR:LICENSEE:
CUPERTINO CITY CENTER BUILDINGS,CITY OF CUPERTINO,
a California limited partnership a municipal corp ration
By: PROM XX, INC.,By: DC() c3
a California corporation, its general partner
Dave Knapp:
By: PROMETHEUS REAL ESTATE
GROUP, INC.,Its: City Manager
a California corporation,
agent for owner ATTEST:
K-
Print Name: c r _Print Name: i< 1 vYl h e i 11 Mt v
Its: / // 1 , , Its City Clerk:
By: 676.Approved as to form:
Print Name:
lIts:
Carol Korade
City Attorney
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