14-052 License Agreement, Cupertino City Center Garage, Prometheus L•
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LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement") is made and entered into as of the day j
of March 2014, by and between CUPERTINO CITY CENTER GARAGE, a California limited
partnership ("Licensor"), and City of Cupertino ("Licensee:").
RECITALS:
A. Licensor is the owner of certain 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 now 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 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) Licensor grants to Licensee a revocable, non-exclusive, temporary license (the
"License") to use that certain portion of the Licensor Property shown as cross-hatched on Exlvbit A
attached hereto and incorporated herein by this reference (the "License Area"), for the purpose of
providing car parking (each respective event is herebaafter 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, 2014. Either party may tenninate 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 usc: of the Licensor Property may be made other than
as herein setforth.
(b) In consideration of the grant of the License, upon execution of this Agreement,
Licensee shall pay to Licensor the sum.of One dollar and zero cents($1.00).
(c) 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 any security, Licensor does not make ar.y representation that the License Area is fit for the
intended use, the Licensor.doe. s 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
discharges the Licensor, and each and every person, firm or corporation, now a general and/or limited
partner of Licensor, and their respective heirs, devisee., 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 limitation, 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.
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(d) Other than temporary signage Licensee shall make no alterations, improvements
or modifications to the Licensor Property.
(e) 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.
2. (a) Licensee shall to the fullest ,xtent 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, Symantec Corporation, a. Delaware corporation, Cupertino City Center Buildings, .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 j
partnership (and its general partner, Suriset Ridge Development Co., Inc., a California corporation),
Cupertino City Center Owners Association, a California no 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 Cupertino Hotel Associates, 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 limitation, 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
obligation to be performed by Licensee under the terms of this Agreement.
(b) Licensee as a material part of i:he 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 in 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 (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 Licensor Property, or to any equipment, appliances or fixttures therein, or from any other cause
whatsoever. Licensee shall give prompt written notico to Licensor in case of fire or accidents on the
Licensor Property.
(c) 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).
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(d) The obligations of Licensee under this Section 2 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.
3. (a) Licensee shall, at Licensee's expense, obtain and keep in force during the term of
this Agreement, a policy of commercial general liability insurance, including the broad form
endorsement, insuring against any liability arising ou't of the use of the License Area. 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 Licensor
Property 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 iri Section 2 above although Licensee's obligations
pursuant to Section 2 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.
(b) If Licensee fails to procure and maintain any insurance required to be procured
and maintained by Licensee pursuant to this Agreement, Licensor may, but shall not be required, to
procure and maintain all or any portion of the same, at the expense of Licensee and/or immediately
terminate this Agreement, at Licensor's option. Licensor's election pursuant to this Section 3 to procure
and maintain all or any portion of the insurance which Licensee fails to procure and maintain is
acknowledged by Licensee to be for Licensor's sole benefit. Licensee acknowledges that any insurance
procured and maintained by Licensor pursuant to this Section 3 may not be sufficient to adequately
protect Licensee. Any insurance procured and maintained by Licensor pursuant to this Section 3 may
provide for less coverage than is required to be maintained by Licensee pursuant to this Agreement.
Licensee acknowledges and agrees that Licensee is and shall remain solely responsible for procuring
insurance pursuant to this Section 3. 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 use of the License Area, 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.
Licensor acknowledges that Licensee is self-insured and that this self-insurance satisfies the requiremenacknowledges
of Paragraph 3.
4. 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 Licensor Property.
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. Should
any claims of lien relating to use of the Licensor Property 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 twenty (20) 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
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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 Section and all
expenses incurred by it in connection therewith including attorney's fees and costs shall be payable to
Licensor by Licensee on demand.
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 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.
7. All notices required under this Agreen gent;to be given to Licensee, and all approvals and
other cormnuriications required or permitted to be given hereunder, must be.in writing and sent by
personal delivery, reputable overnight courier providing receipt of delivery (such as Fedex), facsimile
transmission or certified U.S. mail return receipt requested, which transmission is to be confirmed by
telephone. All notices shall be sent to the following parties:
If to Licensee:
City of Cupertino
10300 Torre Avenue
Cupertino,CA 95014
Attn: Glenn Goepfert
Phone Number: (408) 777-3244
Fax Number: (408)777-3333.
Email: glenng @cupertino.org
If to Licensor: .
c/o Prometheus Real Estate Group,Inc.
1900 South Norfolk Street, Suite 150
San Mateo, California 94403
Attn: Chief Financial Officer
Phone.Number: (650)931-3400
Fax Number: (650) 931-3600
With concurrent copies to:
c/o Prometheus Real Estate Group,Inc.
1900 South Norfolk Street, Suite 150
San Mateo, California 94403
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Attn: Senior Vice President Property Management Services
Phone Number: (650)931-3400
Fax Number: ('650) 931-3600
Prometheus Real Estate Group,Inc. i
20400 Stevens Creek Boulevard, Suite 130
Cupertino, California 95014
Attn: Senior Portfolio Manager
Phone Number: (408) 873-0121
Fax Number: (408) 873-0122
8. This Agreement shall be governed by the laws of the state of California, with jurisdiction
and venue to be in the county where the Licensor Property is located.
9. 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.
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 1
A C1(I"C/41- WWI C-1 a Co / n rc4 ]�h
By: SUNSET RIDGE DEVELOPMENT CO.,
INC., a California corporation, By:
its general partner
By: PROMETHEUS REAL ESTATE ' Print Name: David Brandt
GROUP, INC., a California
Corporation,agent for owner Its: _City Mana eg r
Print Name: //a r�r��>,�/e� r �j
Its: ��/O �J ,Cam (i�� moo /
By: A ker4
Print Name:
Its:
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