11-024 License Agreement, Prometheus, City Center Garage LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement ") is made and entered into as of the 1 day of
February 2011, (the "Effective Date "), by and between CUPERTINO CITY CENTER GARAGE, a California
limited partnership ( "Licensor"), and the CITY OF CUPERTINO, a municipal corporation ( "Licensee ").
RECITALS:
A. Licensor is the owner of the real property located at 20350 Stevens Creek Boulevard, Cupertino,
California (the "Licensor Property ").
B. Licensee is planning on hosting several events (the "Licensee Event ") and desire to have the
temporary use of the Licensor Property for the sole purpose of parking for event goers.
C. 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 the Licensor Property for the limited
purpose of guest parking, all as more particularly provides; iri 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 revocable, non - exclusive, temporary license (the "License ")
during the period (the "Term ") to use a certain portion of the Licensor Property shown as cross - hatched on Exhibit
A attached hereto and incorporated herein by this reference (the "License Area" for the purpose of providing car
parking (each respective event is hereinafter referred to as the "License Event" on the express terms and conditions
contained herein, and on those specific times and dates referenced on the "License Event Schedule" included in
Exhibit B attached hereto and made a part hereof by this reference. The duration of this Agreement shall be from
the date of execution of this agreement through and including December 31, 2011. Either party may terminate this
Agreement at any time upon giving not less than thirty (30;) days prior written notice to the other party. No storage
of any equipment or materials shall be permitted on the Licensor Property and no use of the Licensor Property may
be made other than as herein set forth.
(b) Licensee shall to the fullest extent permitted by law, indemnify, defend with counsel
reasonably acceptable to Licensor, and hold harmless Licensor (and its general partner, Sunset Ridge Development
Co., Inc., a California corporation), Prometheus Real Estate Group, Inc., a California corporation, WW DASC
Owner LLC, a Delaware corporation, Cupertino City Center Building, a California limited partnership (and its
general partner, Prom XX, Inc., a California corporation), Cupertino City Center Apartments, a California limited
partnership (and its general partner, Prom CCC, LLC, a California Limited liability company), Cupertino City
Center Apartments II, a California limited partnership (and its general partner, Sunset Ridge Development Co., Inc,
a California corporation), Cupertino City Center Owners Association, a California non - profit corporation,
Montebello Homes, LLC, a California limited liability company, Montebello Piazza, LLC, a California limited
liability Company, Verona Owners Association, Stevens Creek Commercial, LLC, a California limited liability
company, and AEWRP Cupertino Hotel, LLC, dba Cypress Hotel and each of their respective 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 limitations, Claims for property damage or personal injury
(including without limitation, death), arising out of (a) Licensee's use of the Licensor Property or any part thereof,
or any act or negligence or other thing done in or about the Licensor Property by Licensee or Licensee's employees,
agents, contractors or invitees, (b) any activity, work or other thing done, permitted at or about the Licensee
Property, or any part thereof, in connection with the conduct of the Licensee Business, or (c) any breach or default in
the performance of any obligations to be performed by Licensee under the terms of this Agreement.
(c) 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 Licensor Property 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
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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 (or 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 Licensor Property 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 Licensor Property. The obligations of Licensee under
this subsection (c) 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.
(d) 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 sing '',e 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
shall specifically insure Licensee's performance of the indemnity and hold harmless agreements contained in
subsection (c) above although Licensee's obligations pursuant to subsection (c) 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 subject to reduction of coverage except after thirty (30)
days prior written notice to Licensor.
(e) Licensee shall keep the Licensor Property 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 Licensor Property, 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. Shouad any claims of lien relating to use of the Project by
Licensee be filed against, or any action be commenced affecting the Licensor Property 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 the
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
addition 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 Licensor Property from the
lien. All sums paid by Licensor pursuant to this subsection (e) and all expenses incurred by it in connection
therewith including attorney's fees and costs shall be payable to Licensor by Licensee on demand.
(f) Licensee acknowledges and agrees that Licensor is not making any representation or
warranty about the Licensor Property. Licensee acknowledges and agrees that the License Area is to be accepted
"AS IS ", in the broadest sense of the term, and, without limiting the generality of the foregoing in any manner
whatsoever, Licensee acknowledges and agrees that Licensor is not providing security, Licensor does not make any
representation that the License Area is fit for the intended use, the Licensor does not make any representation
regarding the License Area's compliance with applicable laws or other governmental requirements. Licensee, on
behalf of itself and all of it principals, shareholders, partners affiliated entities, assignees and successors in interest,
as well as all person or entities derivatively claiming through them, hereby waives, relinquishes, releases and
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discharges the Licensor, and each and every person, firm or corporation, now a general and/or limited partner of
Licensor, and their respective heirs, devisees, legatees, executors from and against any and all liabilities, obligations,
fines, penalties, claims, demands, suits, judgments, actions, causes of action, damages, costs, losses and expenses
(including without limitations, attorney's fees, expert witness fees, and court costs), directly or indirectly arising by
reason of, in connection with, on account of or pertaining to any of the foregoing.
(g) Other than temporary signage Licensee shall make no alterations, improvements or
modifications to the Licensor Property.
(h) Upon termination of this Agreement, Licensee shall return the License Area and any
other affected area of the Licensor Property to the condition existing prior to the use thereof by Licensee.
(i) 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 litigations, Licensee shall indemnify, hold
harmless and defend the 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).
2. In consideration of the grant of license, upon execution of this Agreement, Licensee shall pay to
Licensor the sum of zero dollars ($0.00)
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 Licensor Property 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
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 Licensor Property; 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 full term hereof after any such termination,
foreclosure or sale.
4. 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.
5. Licensee agrees that this Agreement shall not be assignable and Licensee shall not assign this
Agreement or grant a license or sublicense regarding the Licensor Property 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.
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6. 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, 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:
I f to Licensor:
City of Cupertino, Department of Public Works t; /o Prometheus Real Estate Group, Inc.
10300 Torre Avenue
Cupertino, CA 95014 1900 South Norfolk Street, Suite 150
San Mateo, CA 94403
Attn: Glenn Goepfert Attn: Executive Vice President
Telephone No.: 408 - 777 -3354 Telephone No.: (650) 931 -3400
Fax No.:408- 777 -3333 Fax No.: (650) 931 -3600
with a concurrent copy to:
c/o Prometheus Real Estate Group, Inc.
900 South Norfolk Street, Suite 150
San Mateo, CA 94403
Attn: Brett Miles
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 130
Cupertino, California 95014
Attn: Property Manager
Telephone No.: (408) 873 -0121
Fax No.: (408) 873 -0122
9. 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.
10. 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 be one and the same instrument.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the date first written
above.
LICENSOR: LICENSEE:
CUPERTINO CITY CENTER GARAGE, CITY OF CUPERTINO,
a California limited partnership a municipal corporation
By: SUNSET RIDGE DEVELOPMENT CO., INC. By: Ct);%.4.,th
a California corporation, its general partner
Print Name: Dia,4A. 0 w eN 4 P P
By: PROMETHEUS REAL ESTATE
GROUP, INC., Its: e -) kp p24/
a California corporation, j
agent for owner APPROVED AS TO FORM
BY--� ]3y: «l ( c0
Print Name: / _„ �(1,7 j „Print Name: G b.� h. g 4v..,
Its: ` .ems ! �/ c ..� ; , ] ts: City Attorney
By:
Print Name: 47 I i : @ ( - �✓�► •+►,,,
Its: Ve.i. Pecs ...-1
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EXHIBIT B
EVENT DATE
Earth Day April 9, 2011 (Saturday)
Bunny Run April 23, 2011 (Saturday)
Happy Kids Day August 20, 2011 (Saturday)